IN THE
COURT OF SPECIAL APPEALS OF MARYLAND
SEPTEMBER TERM, 2000
NO. 923 APR 3
0 2002
ADNAN SYED,
Appellant
V.
STATE OF MARYLAND,
Appellee
APPEAL FROM THE CIRCUIT COURT
FOR BALTIMORE CITY
(Wanda Keyes Heard, Judge)
BRIEF OF APPELLEE
J. JOSEPH CURRAN, JR.
Attorney General of Maryland
STEVEN L. HOLCOMB
Assistant Attorney General
Office of the Attorney General
Criminal Appeals Division
200 Saint Paul Place
Baltimore, Maryland 21202
(410) 576-6537
Counsel for Appellee
TABLE OF CONTENTS
Page
STATEMENT OF THE CASE 1
QUESTIONS PRESENTED 1
STATEMENT OF FACTS 2
ARGUMENT:
1. THERE WAS NO VIOLATION OF BRADY V.
MARYLAND WHERE SYED WAS ABLE TO
CROSS-EXAMINE STATE'S WITNESS, JAY
WILDS, ABOUT ALL RELEVANT ASPECTS
OF HIS PLEA AGREEMENT AND THE
MANNER IN WHICH HE OBTAINED THE
ASSISTANCE OF PRIVATE COUNSEL 15
A. General Principles 16
B. There was no Brady violation
where Syed effectively impeached
Jay Wilds and elicited all relevant
information about Wilds's plea
agreement during five days of
cross-examination 19
C. The trial court properly exercised
discretion in ruling that Syed could
not call the prosecutor to testify
regarding the same matters testified
to by Jay Wilds 33
D. If preserved, the trial court properly
denied Syed's motion to strike the
testimony of Jay Wilds 37
Page
E.
The trial court properly exercised
discretion in denying Syed's
motion to compel
39
F. The trial court properly exercised
discretion in denying Syed's
request to recall Wilds after five
days of cross-examination, and in
denying Syed's request to call
Wild's attorney as a witness 42
G. The trial court properly denied
Syed's request to call Elizabeth
Julian as a witness to testify to the
process by which a charged
defendant applies for representation
from the Public Defender 48
H. There was no prosecutorial
misconductin Syed's trial and Syed
was not prejudiced by any belated
disclosures of information
concerning State's witness, Jay
II. THE TRIAL COURT PROPERLY EXERCISED
DISCRETION IX PERMITTING A WITNESS
TO READ A PORTION OF A LETTER
WRITTEN BY THE VICTIM AND
IlL IF PRESERVED, THE TRIAL COURT
PROPERLY EXERCISED DISCRETION IN
ADMITTING THE VICTIM'S DIARY INTO
Wilds
52
ADDRESSED TO S^'ED
53
EVIDENCE
60
Page
CONCLUSION 66
PERTINENT PROVISIONS 67
TABLE OF CITATIONS
Cases
Bank of Nova Scotia v. United States, 487 U.S. 250 (1988) 52
Banks v. State, 92 Md. App. 422 (1992) 63, 64
Best V. State, 79 Md. App. 241, cert, denied, 317 Md. 70 (1989) 59
Brady V. Maryland, 313 U.S. S3 (1963) 15, passim
Brown v. State, 359 Md. 180 (2000) 56
Carlton v. State, 1 1 1 Md. App. 436, cert, denied, 344 Md. 328 (1996) . . 58
Case V. State, 1 18 Md. App. 279 (1997) 58
Caviness v. State, 244 Md. 575 (1966) 60
Conyers v. State, 354 Md. 132 (1999) 55, passim
Conyers v. State, 367 Md. 571 (2002) 16, 19
Cook V. State, 1 18 Md. App. 404 (1997), cert, denied,
349 Md. 234(1998) 65
Cutchin V. State, _ Md. App. No. 195, Sept. Term, 2001
(filed March 1,2002) 30
Davis V. State, 189 Md. 269 (1947) , 60
iii
Page
Dorsey v. State, 276 Md. 638 (1976) 59
Ebb V. State, 341 Md. 578, cert, denied, 519 U.S. 832 (1996) 29
Evans v. State, 304 Md 487 (1985), cert, denied,
478 U.S. 1010(1986) 39
Farah v. Stout, 112 Md. App. 106 (1996), cert, denied,
344Md. 567 (1997) 58
Gaylord v. State, 2 Md. App. 571 (1967) 61
Grandison v. State, 305 Md. 685, cert .denied, 479 U.S. 873 (1986) .... 38
Grant v. State, 16 Md. App. 165 (1988), rev*d on other grounds,
318 Md. 672(1990) 61,63
Grax V. State, 137 Md. App. 460 (2001), rev'd on other grounds ^
_ Md. No. 37, Sept. Term, 2001 (filed April 11, 2002) 57, 58
Green v. State, 127 Md. App. 758 (1999) 29
Grier v. State, 351 Md. 241 (1998) 54
Holland v. State. 122 Md. App. 532, cert, denied, 351 Md. 662 (1998) . . 56
HoUowav V. State, 26 Md. App. 382, cert, denied,
276 Md. 745 (1975) 61,63
Holt V. State, 50 Md. App. 578 (1982) 36
Hunt V. State, 321 Md. 387 (1990), cert, denied, 502 U.S. 835 (1991) ... 63
Johnson v. State, 332 Md. 456 (1 993) 57, passim
Jolmsan v. State, 360 Md. 250 (2000) 38
IV
Page
Jones V. State, 132 Md, App. 657 (2000) 18
Jones V. State, 182 Md. 653 (1944) 57
Kirklandv. State, 75 Md. App. 49 (1988) 58
Klauenberg v. State, 355 Md. 528 (1999) 62
Leuschner v. State, 41 Md. App. 423 (1979) 60
Lyba v. State, 321 Md. 564 (1991) 29
Mackv. State, 300 Md. 583 (1984) 29
Marshall v. State, 346 Md. 186 (1997) 30, 31
McCray v. State, 305 Md. 126 (1985) 58
McKenzie v. State, 236 Md. 597 (1964) 40
Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285 (1892) 57
Oken V. State, 327 Md. 628 (1992), cert, denied, 507 U.S. 931 (1993) . . 47
Oken V. State, 327 Md. 628 (1992), cert, denied, 507 U.S. 931 (1993) . . 57
Richmond v. State, 330 Md. 223 (1993) 65
Robinson v. State, 66 Md. App. 246 (1986) 57
Rosenberg v. State, 129 Md. App. 221, cert, denied,
358 Md. 382 (1999) 38
Simpson v. State, 121 Md. App. 263 (1998) 47
Smalhyood v. State, 320 Md. 300 (1990) 29, 30
V
Snyder V. State, 361 Md. 580 (2000) 56, 59
State V. Cox, 298 Md. 173 (1983) 30
State V. Daughton, 321 Md. 206 (1990) 65
State V. Deleon, Md. App. _, No. 866, Sept. Term, 2001
(filed April 3, 2002) 52
State V. Hutchinson, 287 Md. 198 (1980) 65
State V. Jones, 138 Md. App. 178 (2001), cert, granted,
365 Md. 266 (2001)(argued December 3, 2001) 54
State V. Thomas, 325 Md. 160 (1992) 16
Stevenson v. State, 299 Md. 297 (1984) 17
Stewart v. State, 104 Md. App. 273 (1995) 19
Stoiiffer V. State, 1 18 Md. App. 590 (1997), aff'd in part, rev'd in part,
on other grounds, 352 Md. 97 (1998) 29
Strickler v. Greene, 527 U.S. 263 (1999) 16, 17
Thomas v. State, Md. App. , No. 255, Sept. Term, 2001
(filed March 1,2002) 47
Tipton v. State, 39 Md. App. 578 (1978) 37
Tuerv. McDonald, 112 Md. App. 121 (1996), affd,
347 Md. 507 (1997) 36
United States v. Beckford, 962 F. Supp. 780 (E.D.Va. 1997) 18
United States v. Brockington. 849 F.2d 872 (4"' Cir. 1988) 52
vi
United States v. Derrick, 163 F.3d 799 (4'' Cir. 1998) 52
United States v. Elmore, 423 F.2d 775 (4* Cir. 1970), cert, denied,
400 U.S. 825 (1970) 18
United States v. Hasting, 461 U.S. 499 (1983) 52
United States v. Higgs, 713 F.2d 39 (3"^^ Cir. 1983) 18
United States v. Shifflett, 798 F. Supp. 354 (W.D.Va. 1992) 18
United States v. Smith Grading & Paving, Inc., 760 F.2d 527
(4"^ Cir. 1985), cert, denied, 41 A U.S. 1005 (1985) 17
Vandegrift v. State, 82 Md, App. 617, cert, denied,
320 Md. 801 (1990) 61,63
Ware v. State, 348 Md. 19 (1997) 16
Ware v. State, 360 Md. 650 (2000), cert, denied,
121 S.Ct. 864(2001) 36,59
Watkins v. State, 328 Md. 95 (1992) 38
Watkins v. State, 357 Md. 258 (2000) 56
Wilhelm v. State, 212 Md. 404 (1974) 47
Williams v. State, 364 Md. 160 (2001) 39
Williams v. State, 99 Md. App. 71 1 (1994), aff'd on other grounds,
344 Md. 358 (1996) 56
Wilson V. State, 363 Md. 333 (2001) 16, 19
Yeagy-.v. State, 63 Md. App. 1 (1985) 19
vii
Page
Constitutional Provisions
United States Constitution:
Article 21 29
Sixth Amendment 28, passim
Rules
Maryland Rules of Procedure:
Rule 4-242 20, passim
Rule 4-263 38, 40
Rule 4-323 60, 61
Rule 5-403 37, passim
Rule 5-801 55
Rule 5-803 55, passim
iMiscellaneous
Lynn McLain, Maryland Rules of Evidence § 5-803 (1994) 58
viii
IN THE
COURT OF SPECIAL APPEALS OF MARYLAND
SEPTEMBER TERM, 2000
NO. 923
ADNAN SYED,
Appellant
V.
STATE OF MARYLAND,
Appellee
APPEAL FROM THE CIRCUIT COURT
FOR BALTIMORE CITY
(Wanda Keyes Heard, Judge)
BRIEF OF APPELLEE
STATEMENT OF THE CASE
Appellee, the State of Maryland, accepts the Statement of the Case set
forth in the brief of Appellant, Adnan Syed.
QUESTIONS PRESENTED
1 . Was there any violation of Brady v. Maryland where Syed was able to
cross-examine State's witness. Jay Wilds, about all relevant aspects of his plea
agreement and the manner in which he obtained the assistance of private
counsel?
2. Did the trial court properly exercise discretion in permitting a
witness to read a portion of a letter written by the victim and addressed to
Syed?
3. If preserved, did the trial court properly exercise discretion in
admitting the victim's diary into evidence?
STATEMENT OF FACTS
The State accepts the Statement of Facts set forth in the brief of Syed,
with the following additions and corrections.
Police recovered a page torn from a map in the rear seat of the victim's,
Hae Lee, vehicle. (1/31/00, 58). The page included the map area of Leakin
Park, the location where Lee's body was found. (1/31/00, 60). Syed's
fingerprint was found on an identification card in the glove compartment of the
car. (2/1/00, 24-25).' Syed's palm print was found on the back cover of the
map recovered fi-om the car. (2/1/00, 27). Syed's fingerprints were also found
on floral paper recovered fi-om the back seat of the car. (2/1/00, 29). Two
hairs recovered fi"om the victim's body matched Syed's physical
characteristics, but did not match his hair exactly. (2/1/00, 117).
Jay Wilds was the State's primary witness. Wilds testified before the
jury on direct examination on February 4, 2000. (2/4/00, 115-164). Wildswas
cross-examined by Syed on February 4, 2000, (2/4/00, 164-246), February 10,
2000, (2/10/00, 13-159, 169-189), February 11, 2000, (2/11/00, 65-107),
Februar>' 14, 2000, (2/14/00, 40-162), and February 15, 2000, (2/15/00, 10-
1 33). Wilds's redirect examination occurred on Februar>' 1 5, 2000, (2/15/00,
' Jay Wilds testified that after they buried Hae Lee, Syed was "flipping
through her wallet." (2/4^00, 156),
2
133-150), and he was subject to re-cross examination by Syed the same day.
(2/15/00, 150-162).
Pertinent to the issues raised by Syed, on direct examination, Wilds
identified the plea agreement that he signed in which he admitted to being an
accessory after the fact to the murder of Hae Lee. (2/4/00, 162-63; State's Ex.
35). Asked about his understanding of the agreement. Wilds replied:
Well, if I tell any kind of lie, it voids it and it's no good.
It's a truth agreement, and that's about it, a cap. As long as I tell
the truth, I can only get a certain amount of years.
(2/4/00, 163).
The plea agreement was admitted without objection. (2/4/00, 163). On
cross-examination, Wilds testified that he signed the agreement on September
7, 1999. (2/4/00, 165). Wilds agreed that the agreement did not contain a
recitation of the underlying facts of the crime. (2/4/00, 167). Wilds also
agreed that there was no recitation of facts at his plea hearing. (2/4/00, 1 94).^
On continued cross-examination of Wilds, Syed's counsel inquired further as
to the procedures used and questions asked at Wilds's hearing. (2/4/00, 212-
20). Wilds testified that he understood that he faced up to five years in prison
as an accessory after the fact. (2/4/00, 216). Wilds also testified that he
understood there would be "both a guilty plea and a disposition sometime far
in the future," and that would occur after the State determined whether he had
fulfilled his obligation under the agreement, (2/4/00, 217). Wilds also
A transcript of that hearing, before the Honorable Joseph P.
McCurdy, was identified and is in the record, and that transcript indicates that
the prosecutor informed the court that it would provide a written statement of
facts at the time of disposition on Wilds's plea. (9/7/99, 2-3; 2/22/00, 48-50).
3
testified that he did not swear an oath at the hearing before Judge McCurdy.
(2/4/00, 218).^ Also during Wilds's cross-examination, in response to Syed's
leading question, Wilds testified that Mr. Urick, the prosecutor, helped provide
him with an attorney. (2/10/00,156). Wilds testified before thejury that this
assistance was provided before Wilds was charged in the case with accessory
after the fact to murder. (2/10/00, 156).
Additionally, on the fifth and final day of cross-examination of Wilds,
Syed extensively cross-examined Wilds concerning all the details surrounding
the plea agreement and how he came to be represented by Ms. Benaroya.
(2/15/00, 39-133). Wilds testified before the jury that before September 6,
1999, he spoke with the Public Defender's Office, but they would not provide
him with representation until he had been charged. (2/15/00, 39-40). Wilds
testified that when police came to pick him up on September 7, 1999, he did
not know that day that he would be entering a plea. (2/1 5/00, 42). The police
did not tell Wilds that he was being taken to the State's Attorney's Office, and
Wilds had never been in the prosecutor's, Mr. Urick's, office before that day.
(2/1 5/00, 51). Wilds confirmed that prior to meeting Mr. Urick, he had not
been charged, he had not been before a Commissioner, and he had not seen a
judge. (2/15/00, 56-57). Police did not tell Wilds that he had to work out a
deal, if there was to be one. with Mr. Urick. (2/15/00, 57). Wilds then
answered the following questions on cross-examination before thejury:
Q. And Mr. Urick introduced himself to you, you of
course asked him now when am I going to get charged?
A. No, ma'am.
^ The transcript ofthe proceeding indicates to the contrary. (9/7/99,3).
Q. And did he express questions himself?
A. He told me that he had someone he would like me to
meet.
Q. He had somebody - the very first thing he said was
there's somebody that I want you to meet?
A. Yes, ma'am.
Q. And at that point he had introduced himself to you.
Had you spoken back to him?
A. I believe I said hello.
Q. And did you ask him for help with picking a lawyer?
MR. URICK: Objection.
THE COURT: Overruled.
A. NOj ma'am.
Q. Did you ask for any assistance from him at all?
A. No, ma'am.
Q. Did you tell him you wanted a lawyer, even though
you might not have asked for his help?
A, J believe he told me I was going to need one.
Q. He told you that you were going to need one, and then
he told you there's somebody he'd like you to meet?
A. Yes, ma'am.
(2/15/00, 58-59).
The person Urick wanted to introduce was not in the same office, but
was nearby. (2/1 5/00, 59). Wilds testified that he did not ask Urick why he
needed a lawyer because he believedbe was going to be charged in connection
with the murder. (2/15/00, 60). Urick then took Wilds to meet a person that
Urick described as "a very good lawyer, defense attorney, and that she takes
- she does some pro bono work." (2/15/00, 61). Wilds then testified before
the jury that he knew nothing about this other lawyer, nothing about her
reputation or experience, and had never met her before that day. (2/15/00, 61-
62). He was tiien asked the following questions before the jury by Ms.
Gutierrez:
Q. Now, you understood what pro bono meant, did you
not?
A. Yes, ma'am,
Q. When he said it you knew that that meant without a
fee, did you not?
A, I understood that, yes.
(2/15/00, 63).
Wilds 's cross-examination on this subject continued:
Q. And, sir, did you come to understand that that lawyer
was available to you pro bono?
A. Yes, ma'am.
Q. And you needed that, did you not. if you needed a
lawyer?
A. Yes, ma'am.
Q. And you couldn't have afforded your own lawyer
could you of?
*■ A. No, ma'am.
5, Q. That's why you had called the Public Defender's
Office, didn't you?
A. Yes, ma'am.
Q. Because you thought if you needed a lawyer you had
to get a lawyer that wasn't going to cost you any money?
A. Correct.
Q. Because you couldn't have afforded to go out and
hire a lawyer back then?
■ A. No, ma'am.
(2/15/00, 65).
After meeting with Benaroya for approximately one hour and thirty
minutes, Benaroya, Urick, and Wilds discussed a plea agreement. (2/15/00,
71). At the end of another hour, Wilds signed the plea agreement, which he
previously called a "truth agreement," in his testimony. (2/15/00, 72). Wilds
testified this was the first instance when he had been presented with a plea
agreement. (2/1 5/00, 73). Wilds testified that some alterations were made to
the plea agreement. (2/1 5/00, 74). Wilds testified that he observed his lawyer
make these alterations. (2/1 5/00, 75). Wilds also testified that the alterations
were "minor," and concerned the terms of how he was to go to court, and
apparently, boilerplate language about whether the case was a drug case.
7
(2/1 5/00, 76, 78-79). Atthe end of this meeting, the plea agreement had been
totally negotiated. (2/15/00, 77-78).*
After the plea was signed, the parties went to the courthouse. (2/1 5/00,
83-84). Wilds again repeated earlier testimony that the agreement outlined »
certain obligations on his part, and certain statements on the part of the State.
(2/15/00, 117). Wilds repeated that he committed to tell the truth, that he
would testify when the State told him to, and that on those occasions, he would
tell the truth. (2/1 5/00, 1 1 8). Wilds tiien was asked if his understanding was
that, under the agreement, whether Mr. Urick would be making certain
recommendations at Wilds's sentencing. (2/15/00, 121). Wilds testified as
follows:
Q. Well, sir, you understood that one of the
recommendations, one of the agreements in this agreement that
obligates Mr. Urick is that if you complete all of the terms and
conditions stated in the agreement to the satisfaction of the
State, that's Mr. Urick, right, the State?
A. Yes, ma'am.
Q. And you understood that then, didn't you?
A. Yes, ma'am.
Q. That the State will recommend the sentence of five
years -
^ Wilds was then questioned about paragraph 1-A of tbe plea
agreement, which concerned whether Wilds had been truthful in all prior
interviews. (2/15/00, 81). The court sustained objections to Syed's
argumentative questions about whether Wilds informed Urick "about all of the
times you had already lied?" (2/15/00, 80-82).
8
MR. URICK: Objection.
Q. - to the Department of Correction with all but two
years suspended?
THE COURT: Overruled. Is that your understanding?
THE WITNESS: Yes, ma'am.
(2/15/00, 121-22).
Wilds then was asked to review the agreement, and Syed asked the
following, still on cross-examination:
Q. Okay. And, in fact, item D says that if you fail to
complete each and every obligation under the agreement the
State will recommend a sentence as follows, five years to the
Department of Correction; is that correct?
A. Yes, ma'am.
(2/15/00, 123).
Further:
Q. And you also, sir, understood that actually what
sentence you receive at any point in time when you come up for
sentencing when your guilty plea is concluded, is really up to
the judge?
A. Yes, ma'am.
Q. And that ultimately only the judge gets to decide?
A. Yes, ma'am.
Q. Right? But that the determinations of whether or not
you met your obligations will always be up to Mr. Urick?
MR. URICK: Objection.
THE COURT: Overruled.
Q. Will it not?
THE COURT: Is that your understanding?
THE WITNESS: Yes, ma'am.
(2/15/00, 124-25).
Next, Syed finally concluded cross-examination of Wilds before the
jury with several questions concerning representation by Benaroya. The
exchange began:
Q. Now, Mr. Wilds, the plea agreement, the Truth
Agreement as you call it, doesn't say anything about the benefit
of having a lawyer, does it?
MR, URICK: Objection.
THE COURT: Overruled. Does the agreement say
anything about the benefits of having a lawyer?
THE WITNESS: No, ma'am.
Q. And, sir, when you signed that agreement on the 7'*'
of September, did you regard it as a benefit provided to you?
A. No, ma'am.
Q. Did you think that it was a good thing?
A. Having a lawyer?
Q. Yes.
A. Yes, ma'am.
10
Q. That day?
A. Yes, ma'am.
Q. And did you think it was something that Mr. Urick
had provided?
MR. URICK: Objection.
THE COURT: Overruled. What did you think?
Q. In your mind?
A. At that point in time, yes,
Q. Yes. And did Mr. Urick ever tell you that that was a
benefit that he was providing you?
A. No, ma'am.
Q. Did you not come to regard it at some point as a good
thing that you got a free lawyer?
A. Yes, ma'am.
Q. And did you not come to think of it as something that
was sort of part of a whole deal?
A. No, ma'am.
Q. Did you think that having a lawyer went with in any
way the plea agreement that you signed?
A. No, ma'am.
(2/15/00, 127-28).
11
Wilds was then asked about his feelings after September 7,1999, about
manner of retention of Benaroya. The following occurred before the jury:
Q. Yes. Mr. Wilds, when there came the time that you
had questions about her, you also had questions about the plea
that had gone down that day, did you not?
A. Yes, ma'am.
Q. You thought, in your words, that things smelled fishy,
did you not?
A. Yes, ma'am.
Q. And by the use of that term you meant they didn't
smell quite right, did you not?
A. No, ma'am.
Q. Well, I want to make sure.
A. I'm agreeing with you.
Q. That they didn't smell right?
A. Yes, ma'am.
Q. And by not smelling right, they didn't make you feel
too good, did they?
A. No, ma'am.
Q. You came to have questions about how it was that
Mr. Urick provided you a lawyer, did you not?
MR. URICK: Objection.
THE COURT: Overruled.
12
Q. Did you not?
THE COURT: Is that the reason that you thought it
smelled fishy?
THE WITNESS: No, ma'am.
Q. Well, sir, you had thought like it sure felt like a
conflict, did you not?
A. Yes, ma'am.
Q. That was the word that you used, was it not?
A, Yes, ma'am.
Q. That the conflict was that it didn't appear to you that
the lawyer was going to be for your interests, isn't that right?
A. Yes, ma'am.
Q. And you had suspicions that because of the
appearance of things that the lawyer might be working for his
interest?
MR. URICK: Objection.
THE COURT: Overruled.
Q. Did you not?
THE COURT: Is that what you were thinking, Mr.
Wilds?
THE WITNESS: Somewhat.
13
Q. Somewhat. And you knew that it wasn't quite right
if the lawyer is working for his interest ljut acting as your
lawyer, isn't that correct?
A. Yes, ma'am.
Q. And that's what you meant by it smelled fishy, is it
not?
A. Yes, ma'am.
Q. And you questioned, in fact, whether or not this
lawyer that you met in the prosecutor's office who was
prosecuting you was just brought in to make you make the plea,
did you not?
A, Yes, ma'am.
Q. That's what you thought?
A. Yes, ma'am.
Q. In your mind?
A. Yes, ma'am.
Q. Even after this day, isn't that correct?
A. Which day?
Q. The 7'" of September,
A. Yes, ma'am.
MS. GUTIERREZ: No more questions.
(2/15/00, 130-33).
14
On redirect examination, Wilds testified that he felt he had a choice in
selecting his attorney. (2/15/00, 148). Wilds testified that the attorney that he
had, Benaroya, was because of his own choice. (2/15/00, 148), Wilds was
then asked whether he was satisfied with Benaroya, arid he replied, "[vjery
much so." (2/15/00, 148).
Other facts may be supplemented and modified in the following
Argument.
ARGUMENT
I.
THERE WAS NO VIOLATION OF BRADY V. MARYLAND
WHERE SYED WAS ABLE TO CROSS-EXAMINE STATE'S
WITNESS, JAY WILDS, ABOUT ALL RELEVANT
ASPECTS OF HIS PLEA AGREEMENT AND THE
MANNER IN WHICH HE OBTAINED THE ASSISTANCE
OF PRIVATE COUNSEL.
In his first issue on appeal, Syed claims that the State violated the
dictates of Brady v. Maiyland, 373 U.S. 83 (1963), when it failed to disclose
certain information pertinent to the impeachment of Jay Wilds prior to trial.
(App. Br. 29). The complaints primarily fall into two categories: (A) whether
there was a Brady violation when the prosecutor failed to disclose that he had
recommended Wilds obtain an attorney; and (B) whether there was a Brady
violation when the prosecutor failed to disclose all the circumstances
surrounding Wilds 's plea agreement. As will be explained, these arguments
are without merit, primarily for the reason that Syed was able to elicit all this
information effectively by u ay of cross-examination. Thus, the information
was before the jury, and the jury had knowledge of all the things complained
about by Syed in order to judge Wilds' s credibility.
15
A. General Principles
jRBradyv.Maiyland,272 U.S. 83 (1963), theSupreme Court held that:
[Sjuppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence
is material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution.
Conyers v. State, 367 Md. 571, 584 n. 18 (2002) (quoting Brady, 373 U.S. at
87); accord Wilson v. State, 363 Md. 333, 345-47 (2001).
The Maryland Court of Appeals has stated:
To establish a Brady violation, ^the defendant must
establish (1 ) that the prosecutor suppressed or withheld evidence
that is (2) favorable to the defense - either because it is
exculpatory, provides a basis for mitigation of sentence, or
because it provides grounds for impeaching a witness - and (3)
that the suppressed evidence is material.
Ware v. State, 348 Md. 19, 38 (1997); see also Strickler v. Greene, 527 U.S.
263, 280 (1999) (duty to disclose such evidence applies even when no request
by accused, and encompasses impeachment evidence as well as exculpatory
evidence).
Evidence is considered material, and relief is therefore appropriate, if
"there is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different. A 'reasonable
probability' is a probability sufficient to undermine confidence in the
outcome." Ware, 348 Md. at 46 ( quoting State v. Thomas, 325 Md. 1 60, 1 90 n.
8 ( 1 992)); see also Strickler, 527 U.S. at 28 1 ("strickJy speaking, there is never
a real 'Brady violation' unless the nondisclosure was so serious that there is
a reasonable probability that the suppressed evidence would have produced a
16
different verdict."); Stevenson v. State, 299 Md. 297, 308 (1984) (new trial not
warranted where evidence not material to the outcome of the case).
The Supreme Court further explained that it is the Petitioner's burden
to establish a reasonable probability of a different result. Strickler, 527 U.S.
at 291 . To that end, the Court has held:
As we made clear in Kyles, the materiality inquiry is not
just a matter of determining whether, after discounting the
inculpatory evidence in light of the undisclosed evidence, the
remaining evidence is sufficient to support the jury's
conclusions. Id., at 434-435, 115 S.Ct. 1555. Rather, the
question is whether "the favorable-evidence could reasonably be
taken to put the whole case in such a different light as to
undermine confidence in the verdict" Id., at 435, 115 S.Ct.
1555.
Strickler, 527 U.S. at 290.
The Supreme Court majority further explained what does constitute
the proper standard to be applied to the materiality determination:
The District Court was surely correct that there is a
reasonable possibility that either a total, or just a substantial,
discount of Stoltzfus' testimony might have produced a different
result, either at the guilt or sentencing phases. Petitioner did, for
example, introduce substantial mitigating evidence about abuse
he had suffered as a child at the hands of his stepfather. As the
District Court recognized, however, petitioner's burden is to
establish a reasonable prohability of a different result. Kyles,
514 U.S., at 434, 131 L.£d.2d 490, 1 15 S.Ct. 1555.
Strickler, 527 U.S. at 291 (emphasis in original).
Both federal and Maryland cases discussing Brady have stated that
there is no violation of due process where the alleged suppressed exculpatory
evidence is disclosed during trial. In United States v. Smith Grading &
17
Paving, Inc., 760F.2d 527 (4* Cir. 1985), cert denied, 474V. S. 1005 (1985),
the defendants argued that the government failed to disclose exculpatory
evidence from an engineer who testified he purposefully under-estimated a
public works project's cost, which would have tended to illustrate defendants' *
claim that their bids for the project were not excessively high. The Fourth
Circuit ruled:
Even if we assume that the engineer's testimony is
exculpatory, its belated disclosure does not constitute reversible
error. No due process violation occurs as long as Brady material
is disclosed to a defendant in time for its effective use at trial.
United States v. Higgs, 713 F.2d 39 (3^'' Cir. 1983). In this case,
the exculpatory information was put before the jury during
cross-examination of the very first trial witness. The
information was available for use in the defendant's cross-
examination of all further government witnesses as well as in
the defendants' case in chief The disclosure of this exculpatory
evidence, at trial, does not rise to the level of a constitutional
violation.
as. V. Smith Grading & Paving. Inc., 760 F.2d at 532; see also United States
V. Elmore, 423 F.2d 775, 779 (4* Cir. 1970) ("disclosure to be effective must
be made at a time when the disclosure would be of value to the accused."),
cert, denied, 400 U.S. 825 (1970); UnitedStates v. Beckford, 962 F. Supp. 780,
788 (E.D.Va, 1997) ("[t]he determination of the precise time at which jBmch"
material must be disclosed is necessarily governed by the specific nature of the
5;'arfv material at issue - i.e., whether it is exculpatory or merely impeachment
evidence."); UnitedStates v. Shifflett, 798 F. Supp. 354, 355 (W.D.Va. 1992)
(no constitutional violation to disclose criminal records of wimesses after they
testified on direct examination because the nature of the materials permitted
its effective use if available for cross-examination); Jones v. State, 132 Md. »
18
App. 657, 675 (2000) ("[t]he Brady sin is hiding something and keeping it
hidden, not hiding something temporarily in order to surprise someone with a
sudden revelation"); Stewart v. State, 104 Md. App. 273, 286-88 (1995) (no
suppression of evidence where defense witness "fiilly able to apprise the
defense of what happened" at an identification procedure); Yeagy v. State, 63
Md. App. 1, 22 (1985) (information complained about was already known by
appellant and prevented invocation of Brady doctrine).
B. There was no Brady violation where Syed effectively impeached
Jay Wilds and elicited all relevant information about Wilds's
plea agreement during five days of cross-examination.
All the material which Syed claims was suppressed related to the
impeachment of Jay Wilds, not whether the alleged suppressed information
was exculpatory. On appeal, Syed relies heavily upon two recent Court of
Appeals cases, Conyers, supra, and Wilson, supra. In Conyers, the Court of
Appeals found that information regarding "the commencement and course of
[a witness's] negotiations for a benefit was withheld from Petitioner until the
post conviction hearing," a proceeding which took place three (3) years after
Petitioner's trial. Conyers, 367 Md. at 602-03. In Wilson, although the State
argued that information regarding the plea agreements had been substantially
disclosed at trial, the Wilson Court based its holding upon the postconviction
court's finding, some twenty (20) years after the trial, that there were written
plea agreements that were never disclosed to the defense. Wilson, 363 Md. at
348. Here, in contrast, everything that Syed complains about with respect to
Jay Wilds's written plea agreement, including the actual written plea
19
agreement, was before the jury prior to deliberations. Thus, there was no
violation of Brady?
During cross-examination of Wilds, Syed focused on whether Wilds
had actually pleaded guilty to accessory after the fact, primarily based on
whether there was compliance with Maryland Rule 4-242. (2/4/00, 194-95).
The jury was excused from the courtroom, and Syed's counsel argued:
What I am seeking to get out and what I think I am
entitled to for two reasons, this witness has been presented to
this jury as not only a witness who has entered a plea agreement
which then makes that the subject of impeachment, what the
agreement was, how much it was limited to, whatever. But he
has now been presented in direct as a witness who has pled
guilty. In terminology, this wimess has acceded he understands
because he freely answered those questions, and there were four
of them following that about the when [sic] he pled guilty.
In fact, this witness has not entered a guilty plea,
(2/4/00, 198).''
The trial court responded:
^ In arguing before this Court, Syed argues preliminarily that the
undisclosed circumstances surrounding the plea agreement constitute a Brady
violation, and then argues eight sub-issues which concern whether the trial
court abused its discretion in certain evidentiary-related rulings. The
evidentiary rulings cannot be taken out of context, and can not be treated non-
chronologically. Thus, Appellee's response will mirror the testimony and
rulings as they actually happened at trial, and will not follow the same order
of issues presented in Syed's brief
^ Syed proffered that there was a videotape of the plea hearing.
(2/4/00, 198). Syed viewed that tape during a break in the cross-examination
of Wilds. (2/11/00, 113).
20
THE COURT: But, Ms. Gutierrez, isn't it a fact that the
purpose of your questions is to determine whether or not he has
any bias, motive, interest in testifying one way or another based
on promises he believes that he has, not whether -
MS. GUTIERREZ: Yes, sir [sic], and I plan to get there.
THE COURT: Wait a minute. Not whether, in fact, they
are promises, whether or not they are, in fact, promises that will
be kept to him, but whether or not they are influencing his
testimony today. So in that regard, it really doesn't matter
whether they called it a guilty plea ornot but, rather, whether or
not you have the latitude to inquire into any promises that have
been made.
(2/4/00, 201-02).
The prosecutor responded to further argument by informing the court
that Wilds pleaded guilty under oath. (2/4/00, 203). Syed argued that Wilds's
guilty plea was not valid because of failure to comply with Md. Rule 4-242,
and the trial court responded, "Ms. Gutierrez, you are arguing Mr. Wilds' point
on appeal of his guilty plea. If, by some reason, Judge McCurdy did not
follow the 4-242 litany, that's for another day and another court to decide."
(2/4/00, 204). The court then ruled:
THE COURT: Ms. Gutierrez, may I make a suggestion
then, in light of your argument, that we will do the following: I
will allow you to inquire as to what this witness recalls being
done during his guilty plea proceeding. That is, he has already
said he wasn't under oath, and anything else that you would like
to draw out. Then in the instructions to the jury, I will be happy
to advise the jury what a guilty plea is under the rules. And if
you would like to structure an instruction -
MS. GUTIERREZ: I will do so.
21
THE COURT: - that would outline what a guilty plea is,
and then we can utilize it in that fashion, because I think what
you are trying to do is, at this juncture, argue the law mixed with
a witness who may not know that certain procedures under 2-
242 [sic] may or may not have been followed.
(2/4/00, 205).
The court further clarified its ruling prior to the resumption of cross-
examination:
I know that the State may not agree but the court's concern is
that if this witness believes that he was engaged in a guilty plea
and that, as a result of that guilty plea, that this promise is
binding in some fashion and that is directing his testimony, the
defense has a right to inquire as to the basis for that belief. And
if for some reason it is a faulty beUef, then the jury is entitled to
hear what it is that may have happened during a guilty plea that
this witness does not either recall or may have forgotten or was
not done, and opens him up to a challenge to his credibility.
(2/4/00, 209).
As detailed above in the statement of facts, Syed was then permitted to
continue cross-examination on the plea hearing, (2/4/00, 212-20), and Wilds
testified that he understood that he faced up to five years in prison as an
accessory after the fact, and that the ultimate disposition in his case would
occur after the prosecutor determined whether Wilds had kept up his end of the
bargain, i.e., to provide truthful testimony at Syed's trial. (2/4/00, 216-17).
The issue concerning the plea hearing and Wild's plea agreement did
not again arise until several days later, after the court took testimony firom
another wimess, during Wild's resumed cross-examination. During that
testimony before the jur>'. Wilds testified that Mr. Urick, the prosecutor,
helped provide him with an attorney. (2/10/00, 156). Wilds testified before
22
the jury that this assistance was provided before Wilds was charged in the case
with accessory after the fact to murder. (2/10/00, 156). As will be discussed
in more detail below, the trial court then denied Syed's requests: (1) to call Mr.
Urick, the prosecutor, as a witness, (2/11/00, 56); (2) to strike Wilds's
testimony, (2/1 1/00, 34); and, (3) to compel disclosure of communications
between Wilds and his attorney. (2/1 1/00, 44).
Subsequently, after further cross-examination of Wilds, Syed's counsel
had an opportunity to view a videotape of Wilds's plea hearing. (2/1 1/00,
1 13). Syed stated that all that occurred at the plea hearing was the litany on
whether Wilds was entering a knowing plea, but that no verdict was entered
on the plea. (2/1 1/00, 1 14). The trial court agreed, and stated that the file
indicated that Wilds's guilty verdict on the plea was held sub curia. (2/1 1/00,
122). The court agreed with Syed that Wilds's file was "very, very odd and
unusual and I can see why would [sic] Ms. Gutierrez would start to wonder."
(2/1 1/00, 123). The prosecutor then argued that the plea statute does not
require the plea to be conducted in one proceeding, an argument to which the
trial court agreed. (2/1 1/00, 127). It then became apparent that there was a
subsequent proceeding, apparently in chambers with Judge McCurdy, where
Wilds and his attorney were present, and to which the prosecution waived its
presence. (2/1 1/00, 134). The trial court then determined that Syed had a
valid complaint, as follows:
She has a witness on the stand, there's been a hearing involving
this witaess that may or may not reflect on the credibility of this
witness, we don't know if the proceeding was under oath, we
don't know what he said during the proceeding, we don't know
what he was asked during the proceeding, but he is your star
witness in your case. She's reviewed a statement, it's the guilty
plea, but there was another hearing held involving this very
23
same witness for which she has no clue what it's about and to
ask or inquire bHndly means she doesn't know what she's
dealing with. Perhaps we could bring him in and ask him.
Perhaps he knows. But you [THE PROSECUTOR] can
understand why she might want that information as a lawyer.
(2/11/00, 138-39).
The court then excused the jury for the remainder of the day and the
court, Syed's counsel, and the prosecutor, questioned Wilds on his plea
agreement. (2/11/00, 145-215). The court began by making clear that it was
not seeking to leam about any conversations between Wilds and his attorney.
(2/1 1/00, 146). Wilds testified that he appeared before Judge McCurdy, in
court, for a guilty plea. (2/11/00, 147). A subsequent hearing was set for
January 4, but Wilds said that hearing did not take place because disposition
would depend upon what Wilds did at Syed's trial. (2/11/00, 148). Wilds
testified that he met with Benaroya and Judge McCurdy after his plea hearing
in chambers. (2/1 1/00, 150, 153). Wilds had called Judge McCurdy's clerk
on his own when he, Wilds, could not get in touch with his lawyer. (2/1 1/00,
154). Wilds then testified that no one from the State's Attorney's Office was
present at this meeting in chambers, that he did not know if the State's
Attorney's Office knew about the meeting, and that no one firom the State's
Attorney's Office had asked him about what happened at that meeting.
(2/1 1/00,155).
Syed then was permitted to inquire of Wilds, and extensively
questioned him about: why he was concerned about Benaroya's representation,
(2/1 lyOO, 158-61, 198); who he spoke to in Judge iMcCurdy's chambers about
24
that concern, (2/11/00, 162)'; whether Wilds indicated that he wanted to
withdraw or alter the plea agreement, (2/11/00, 162-63, 202-03)^ whether,
after Benaroya told him to be in Judge McCurdy's chambers the next day,
Wilds spoke to any detectives or anyone from the State's Attorney's Office,
(2/11/00, 163-65, 202-04, 207-08)'; who was present at this meeting in
chambers, (2/1 1/00, 165-66)'"; what Wilds's concerns were, including whether
he was concerned that his lawyer was not representing his best interest,
(2/11/00, 168-69, 173-74)"; whether he told Judge McCurdy about those
concerns and whether he told Judge McCurdy if he wanted a different lawyer,
(2/1 1/00, 1 70-72, 205, 209)"; the circumstances surrounding his first meeting
Wilds left a voice mail message directly on Judge McCurdy's voice
mail. (2/1 1/00, 162). He also testified that he contacted the State because he
believed they would have Benaroya' s telephone number. (2/1 1/00, 204-05).
He testified he spoke with the assistant prosecutor, Ms. Murphy, who informed
him that she would try to get Benaroya' s number for Wilds. (2/1 1/00, 207).
^ Judge McCurdy did ask Wilds if he wanted to withdraw the plea
agreement. (2/1 1/00, 202, 208-09). Wilds testified he did not indicate that he
wanted any such alteration or withdrawal of the plea. (2/1 1/00, 162-63).
' Wilds testified he did not speak to any police or anyone connected
with the State's Attorney's Office. (2/1 1/00, 164-65).
Wilds testified it was just him, his lawyer, and Judge McCurdy, and
that a video camera was turned on during the conversation. (2/1 1/00, 166).
" Wilds testified he was concerned about who Benaroya was
representing. (2/11/00,169).
Wilds testified that he had told Judge McCurdy that he thought
"things smell fishy." (2/1 1/00, 171). Wilds also testified that prior to the
meeting in chambers, he and his lawyer had talked and that Wilds's concerns
(continued...)
25
with his lawyer and the manner in which he was informed of the pending
charges that were going to be filed against him, (2/11/00, 175-182, 186-90);
when he was charged, (2/11/00, 182-83)"; whether Wilds understood that
Benaroya's pro bono representation, meant that he would not be charged for
her services, which he did understand, (2/11/00, 183-84, 190-93, 196-97);
whether Wilds understood that there were other lawyers that he could have
selected, (2/11/00, 195-96); what his lawyer may have told Judge McCurdy
about how she came to represent Wilds, (2/1 1/00, 200)"; and, finally, how
long the in chambers meeting lasted. (2/1 1/00, 212)."
Upon inquiry by the State, Wilds testified that the Public Defender's
Office would not represent him until he had been charged with a crime.
(2/11/00, 213). He also testified he was very satisfied with Benaroya's
"(...continued)
had been "laid to rest." (2/1 1/00, 170). Wilds also testified that he did not
want a different lawyer representing him. (2/11/00, 172). Wilds also
explained that his concern was that Benaroya did not keep in touch with him.
(2/11/00,211).
Wilds testified that he was first given his charging documents, and
then taken up to meet Mr. Urick, who introduced him to Ms. Benaroya.
(2/11/00, 180, 182-83). Wilds also explained that Benaroya "wasn't forced on
me. It wasn't like they said, this is your lawyer. They asked me, they said
well, you can meet with her and see if you want her to be your lawyer."
(2/11/00, 178-79).
Wilds testified that Benaroya told Judge McCurdy that she had been
contacted by the State and that she looked at Wilds's case before deciding
whether to take his case. (2 '1 1/00, 200-01).
Wilds testified it was about fifteen to twenty minutes altogether.
(2/11/00,212).
26
representation. (2/1 1/00, 213). Wilds also testified that that satisfaction was
conveyed to Judge McCurdy. (2/11/00,213). Wilds also testified that
Benaroya informed Judge McCurdy that she came to represent Wilds because
"she does pro bono work and that she found a case where she felt there was a
need where someone needed help." (2/1 1/00, 215).
Following argument, the trial court ruled that Syed would be permitted
to continue cross-examination of Wilds, (2/11/00, 221, 225), but that the
circumstances surrounding the in chambers meeting was "a dead end," and that
"there is nothing there." (2/1 1/00, 223). The court found that such inquiry
was a "totally collateral area none of which would be admissible." (2/1 1/00,
229). However, the court made clear that any questions Syed had about
Wilds 's concerns about his attorney could be asked in front of the jury.
(2/1 1/00, 225). The next trial date, the court stated what types of questions
would be permitted upon renewed cross-examination of Wilds:
Mr. Wilds on cross, Ms. Gutierrez may ask and I believe
we stopped short of these particular questions, can ask whether
or not he picked his lawyer. She can ask whether he wanted to
keep his lawyer. She can ask whether or not there was - at any
time he was concerned about his lawyer, whether or not that
concern was clarified in some way.
(2/14/00, 5).
After hearing further argument from the prosecutor, the court explained
why it was allowing such continued cross-examination:
Now, if Ms. Gutierrez wants to ask those very same
questions so that the jury gets the benefit of hearing that, I have
no problem with that because it does go into the mind he had at
the time he was making a decision to plea guilty. It affected him
and as I explained to you I view that as a benefit that was
27
derived, some assistance that the State's Attorney got - used in
helping him secure a lawyer.
It doesn't mean you bought the lawyer for him. It
doesn't mean you paid the lawyer. It just means that you did
certain things. The State did certain things and as a result of
what you did it made it easier for Mr. Wilds to select a lawyer,
but ultimately he selected the lawyer, and that information did
not come out in front of the jury, and if Ms. Gutierrez wants to
bring that out or if you want to clarify that information in front
of the jury. It goes to his state of mind, his contemplation as to
what he was getting in exchange for pleading guilty and
assisting the State, and to the extent defense counsel wants to
argue it was a benefit and you want to argue it wasn't a benefit,
the jury could decide what benefit, if any, has affected the
witness's credibility.
(2/14/00, 11-12)."
As detailed in the above statement of facts, Syed was able to
extensively cross-examine Wilds on his prior statements to police, the manner
in which in came to be represented by Ms. Benaroya, the plea agreement, and
the plea hearing. " The Confrontation Clause of the Sixth Amendment requires
Syed continued to argue that he was entitled to this information
before trial. (2/14/00, 16). The court agreed, but stated "I will reiterate is
because we got or you got this information at this juncmre, that you still have
the ability because the witness is still on the stand ... to inquire of the benefit
from htm." (2/14/00, 16). The court specifically found that Syed was not
harmed by any belated disclosure of this information. (2/14/00, 19).
" Syed argues that the court restricted his cross-examination of Wilds,
in part, because he was unable to elicit what effect his "previous lies in prior
statements to police had on the plea agreement." (App. Br., 44). As will be
explained, not only is this argument without merit, but it is also not preserved,
because in neither of the instances cited by Syed on appeal did Syed assert that
(continued...)
28
that a defendant be permitted to cross examine witnesses on matters affecting
their credibility, memory, knowledge or relationship to the parties. Lyba v.
State, 321 Md. 564, 569 (1991); see also Ebb v. State, 341 Md. 578, 587 (the
Sixth Amendment and Article 21 of the Maryland Declaration of Rights
recognize the right of confrontation guaranteed to a criminal defendant, which
includes the right to cross-examine witnesses against him), cert, denied, 519
U.S. 832 (1 996). However, once a defendant has reached his "constitutionally
required threshold level of inquvsy," Lyba, 321 Md. at 570, "trial judges retain
wide latitude insofar as the Confrontation Clause is concerned to impose
reasonable limits on such cross-examination based on concerns about, among
other things, harassment, prejudice, confusion of the issues, the witness'
safety, or interrogation that is repetitive or only marginally relevant," Id.;
accord Smallwood v. State, 320 Md. 300, 307 (1990); Stouffer v. State, 118
Md. App. 590, 625 (1997) ("The allowance of questions on cross-examination
and determination of their relevance are reserved for the sound discretion of
the trial court."), aff'd in part, rev 'd in part, on other grounds, 352 Md. 97
(1 998). Such limitations will be considered erroneous only when some unfair
''(... continued)
the court was erroneously restricting his right to cross-examination, or that
was somehow implicated. (2/10/00, 157; 2/1 5/00, 79). See, generally.
Mack V. State, 300 Md. 583, 603 (1984) ("[T]he question of whether the
exclusion of evidence is erroneous and constitutes prejudicial error is not
properly preserved for appellate review unless there has been a formal proffer
of what the contents and relevance of the excluded evidence would have
been."); accord Green v. State, 127 Md. App. 758, 766 (1999). The same is
true of the other instances cited by Syed because, at the time the objection was
sustained, Syed did not proffer that Brady was being violated or that his cross-
examination was being restricted. (2/15/00, 68, 75).
29
prejudice inures to a defendant. Smallwood^ 320 Md. at 308. Widiout the
exercise of such discretion, cross-examination "can reduce itself to a
discussion of collateral matters which will obscure the issue and lead to the
fact-finder's confusion." State v. Cox, 298 Md. 173, 178 (1983).
Here, Syed's five-day cross-examination ofWilds included examination
on the underlying terms and conditions of his plea agreement, as set forth in
the above statement of facts, and thus, was not unduly restricted. As for
Syed's other claim, that he was prevented from learning what changes Wilds
sought to the plea agreement and whether Ms. Benaroya had been paid any
money for her representation, the trial court had earlier ruled such information
was privileged. (2/11/00, 44-45),'^ Further, after the objections were
sustained, the court explained that the objections were sustained because Syed
was attempting to pierce the attorney/client privilege between Wilds and
Benaroya. (2/15/00, 96-97). See Cutchin v. State, __ Md. App. No. 195,
Sept. Term, 2001 (filed March 1, 2002) (slip op. at 8-18) ("[t]he attorney-client
privilege is a rule of evidence that prohibits disclosure of a communication
made in confidence by a client to an attorney to obtain legal advice")."
In his brief, Syed relies upon Marshall v. State, 346 Md. 186 (1997)
when discussing the evidentiar\' rulings. In that case, Barry Edwards was the
sole eyewitness to a murder which he claimed had been committed by
appellant. Marshall, 346 Md. at 1 90. Prior to trial, Edwards entered a plea to
As noted in the statement of facts, Syed was able to elicit before the
jury that Wilds witnessed his attorney make alterations to the agreement, and
that the alterations were "minor." (2/15/00, 74-79).
" Syed repeatedly attempted to elicit privileged communications
throughout Wilds's cross-examination. (2/15/00, 66-69, 73-75, 82-83).
30
an unrelated charge concerning an entirely unrelated incident. Id. at 189. A
condition of that plea agreement was that Edwards testify at Marshall's trial.
Id. at 190. The trial court in Marshall granted the State's motion in limine
preventing the defense from inquiring about the other plea agreement because
it was not a final conviction and because it was in an unrelated case. Id. at
190-91.
The Court of Appeals first stated the general rule that the
"constitutional right of confrontation includes the right to cross-examine a
witness about matters which affect the witness's bias, interest or motive to
testify falsely." Id. at 192, However, the right of cross-examination is subject
to reasonable limits. Id. at 193. The Court stated that:
The trial judge retains discretion to impose reasonable limits on
cross-examination to protect witness safety or to prevent
harassment, prejudice, confusion of the issues, or inquiry that is
repetitive or marginally relevant.
Id.
The Court held that the trial court erred in limiting the cross-
examination of the sole witness, Edwards. The Court held:
Petitioner was prevented from asking the witness any questions
about the terms of his plea agreement, and although the trial
judge said defense counsel could ask about motive, the offer
was, in reality, a hollow gesture. Where a witness has a "deal"
with the State, the jury is entitled to know the terms of the
agreement and to assess whether the "deal" would reasonably
tend to indicate that his testimony has been influenced by bias
or motive to testify falsely.
Id. at 197-98 (emphasis added).
The Court went on to find that the error was not harmless:
31
Inasmuch as we conclude that defense counsel was denied the
opportunity to cross-examine Edwards, a key prosecution
witness, about the condition of Edwards's plea agreement that
he testify at Petitioner's trial, and that agreement was not
otherwise made known to the jury, we conclude that the jury
lacked the opportunity to properly assess Edwards's testimonial
motivation or potential bias.
Id. at 199 (emphasis added).
Here, in contrast, the jury did know that Wilds had a "deal" with the
State. Indeed, that "deal" was admitted as State's Exhibit 35 without
objection. (2/4/00, 163). Moreover, as explained above. Wilds testified to his
understanding of the agreement, i.e., that it was a "truth" agreement, (2/4/00,
1 62-63, 211), and explained what he knew the possible sentence for accessory
after the fact was, which was a cap of five years. (2/4/00, 162-63, 216).
Additionally, Syed extensively cross-examined Wilds about the plea
agreement. (2/4/00, 164-74. 191-95, 211-20; 2/15/00, 71-79, 83-84, 117-20,
1 2 1-25). Moreover, in regard to any suggestion that the jury was not aware
that Wilds gave inconsistent statements to police, that complaint is belied by
the record which indicates that Wilds was extensively cross-examined
concerning these statements to the police, including, but not limited to, the
extent to which he may have lied to police. (2/4/00, 220-23, 229-30; 2/10/00,
14-20,35-62,66-79, 82-85, 122-31, 133-40, 153-55, 169-77, 185-89; 2/1 1/00,
65-67, 70-84, 87-88, 93-102; 2/14/00, 40-52, 58, 61-79, 88-93, 97-103, 113-
117, 120, 128-29, 136-144, 154-56; 2/15/00, 10-23.27-39, 150-55, 156, 161-
62),^° Additionally, Syed was able to elicit during cross-examination that the
Furthermore, Detective McGilveary testified that Wilds was at times
(continued...)
32
subject of his prior inaccurate statements to the police were discussed between
him and the prosecution team. (2/10/00, 144, 155). Finally, Syed was also
able to elicit many of the details concerning the retention of Wilds's attorney,
Ms, Benaroya, in front of the jury so that the ultimate fact finders could
independently assess whether Wilds thought he was receiving a benefit
through her pro bono representation. (2/10/00, 1 56; 2/1 5/00, 39-40, 42, 51, 56-
65, 127-28, 130-33)
Finally, as to Syed's complaint that the plea agreement cannot be
considered legally valid where Wilds had given prior inaccurate statements to
police, whether or not the agreement was legally valid, or would be upheld on
some subsequent challenge by Wilds, has absolutely no bearing on the
question under the Sixth Amendment of whether Syed was able to confront a
witness against him, nor does it show that the State suppressed exculpatory
material information. The jury knew, over and over again, that Wilds lied to
police when he was first questioned. That goes directly to considerations of
Wilds's credibility. Whether he had entered into a legally binding plea
agreement, as opposed to whether he knew he had to tell the truth in order to
get the benefit of that agreement, was not relevant to establish bias, motive to
falsify, or anything else bearing on Wilds's credibility. Thus, Syed's claims
that there was a Brady violation and that the trial court restricted his cross-
examination are simply without merit.
C. The trial court properly exercised discretion in ruling that Syed
could not call the prosecutor to testify regarding the same
matters testified to bv Jay Wilds.
. (...continued)
inconsistent and had lied to police. (2/18/00, 133-35, 166-69).
33
Returning to the remainder of Syed's evidentiary complaints, in the
middle of the second day of cross-examination of Wilds, Syed asked to voir
dire Wilds outside the presence of the jury, and in the absence of Mr. Urick.
(2/10/00, 162-64). Notably, Syed's counsel claimed that this information
concerning whether Urick assisted Wilds in obtaining counsel was a surprise,
but informed the court:
I will confess to you I've thought this for a long time but never,
ever once did I ever think that they would say it, that I would
ever be able to prove it.
THE COURT: It being?
MS. GUTIERREZ: That in fact Mr. Urick, the prosecutor
of both this witness and my client provided a private lawyer for
a witness in connection with a plea bargain and that having done
so revealed the plea bargain without revealing the true benefit of
having a lawyer.
(2/10/00, 162).
The court ruled that Syed could continue to inquire along these lines
with Wilds, but it would not hold a voir dire proceeding outside the presence
of both the jury and the prosecutor. (2/10/00, 166). The next day at trial,
further argument was heard on the matter, and Syed informed the court that he
was not requesting a mistrial. (2/11/00, 7). Syed wanted to call the
prosecutor, Mr. Urick, to testify in front of the jur>', and the court indicated
that whatever information Syed wanted to obtain about the circumstances
surrounding the plea agreement could be made by inquiring of Wilds's
counsel, Ms. Benaroya, and not the prosecutor. (2/1 1/00, 9). Syed continued
34
to request that Mr. Urick take the stand in front of the jury. (2/1 1/00, 13)."
Syed argued that providing Wilds with pro bono representation was a benefit,
that went to the witness's credibility. (2/11/00, 12). The prosecutor responded
that he believed that "assistance of counsel is a fundamental right under our
constitution, hence it is not a benefit it is a right." The trial court disagreed
with the prosecutor's argument that suggesting that Wilds obtain a certain
counsel who would provide pro bono representation could not be perceived as
a benefit, stating:
As you said, but the benefit is still one which counsel could
argue existed. Whether a jury, a finder of fact, believes in fact
he benefited [sic], whether the finder of fact believes that if [sic]
effects his credibility is an argument that Ms. Gutierrez will
have and I do find that arguably it could be perceived as a
benefit, could be.
(2/1 1/00, 56).
The trial court ruled:
I find that there must be a compelling reason to call Mr.
Urick as a witness in this case in order that you may be afforded
the opportunity to challenge the credibility of Mr. Wilds with
regard to any deal or benefit derived firom the State through the
presentation I'll call it, of an attorney for Mr. Wilds. I also find
that first you made an argument, a rather compelling
presentation of facts. When I say compelling I mean that you
have available to you through your very argument to this Court
those items in evidence to challenged the credibility of Mr.
Wild's testimony with regard to anything Mr. Urick may have
^' Syed argued below, "It's a far different matter for the jury to hear
Mr. Urick acknowledge that he got the lawyer for the man who's credibility
is at the base of his case without which Judge, he has no case." (2/1 1/00, 13).
Thus, contrary to Syed's argument on appeal, (App, Br., 50), it is apparentthat
the trial counsel for Syed wanted this questioning to occur in front of the jury.
35
done to assist. The witness himself, Mr. Wilds provided you
with that evidence and you readily used it in your argument to
this Court. So I find that you have that availability.
Secondly, you have the availability of calling Ms.
Benaroya who I feel would offer you an additional opportunity
to present evidence to attack the credibility of Mr. Wilds. For
that reason I do not find a compelling reason to call or allow you
to call Mr. Urick as a witness in ^is case and with that, with
regard to that motion your motion is denied. . , .
(2/11/00,22-23)."
It has been held that "the trial court is afforded great deference in its
rulings on admissibility of evidence and that rulings as to relevancy will not
be disturbed on appeal unless there is a clear abuse of discretion." Ware v.
State, 360 Md. 650, 672-73 (2000), cert, denied, 121 S.Ct. 864 (2001).
Further, a trial court's exclusion of evidence based on lack of relevancy should
not be disturbed unless the finding was an abuse of discretion. See Tuer v.
McDonald, 112 Md. App. 121 (1996), aff'd, 2>An Md. 507 (1997); Holt v.
State, 50 Md. App. 578, 581 (1982) (admission of evidence within the
discretion of the trial court). Moreover, even if the proffered evidence was
relevant, that would not prevent exclusion;
Syed notes that the trial court later ruled that he could not call
Benaroya, and cites to one page of the trial. (App. Br., 50-51). Notably
missing from Syed's brief before this Court is any mention that the trial court
conducted an entirely separate hearing on the precise issue whether Benaroya
could be called, before ruling that Benaroya's testimony would not be relevant,
and would be cumulative to the testimony that Wilds gave before the jury
concerning the agreement, stating, in part: "I don't believe this witness offers
us any additional information. I don't believe that even if it's relevant that it
does anything more than to confuse the jury or could be used to confuse the
jury." (2/18/00,46).
36
Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury,
or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.
Maryland Rule 5-403; see also Tipton v. State, 39 Md. App. 578, 585 (1978)
(even if relevant, trial judge should weigh factors going to probative value,
such as likelihood jury may be aroused by emotion or otherwise distracted;
that evidence will consume an undue amount of time; and the danger of unfair
surprise).
Even if Urick's testimony were relevant, the trial court had the
discretion to decide whether to permit that information to come in through the
witness on the stand, Wilds, After all, it was Wild's credibility that was at
stake, not the prosecutor's. Besides being cumulative to that testimony, it was
likely that having the prosecutor take the stand in the middle of the murder
trial, not to mention be subject to the order of sequestration, would confuse the
issues and ultimately mislead the jury. Thus, the trial court properly exercised
discretion in denying Syed's request to call the prosecutor to the stand.
D. If preserved, the trial court properly denied Syed's motion to
strike the testimony of Jay Wilds.
Sailing onto another tack. Syed then sought to strike Wilds' s testimony,
again based on the issue of how Wilds obtained legal counsel. (2/1 1/00, 31).
The court denied the motion to strike, ruling:
Motion to strike the testimony of Mr. Wilds is denied.
However, I'm going to allow Counsel in closing argument to
argue the credibility of Mr. Wilds being effected by anything
that Mr. Urick may have done in assisting him in getting counsel
and that is anything that came out through Mr. Wilds 's
' testimony of what he believed, not what may in fact have
37
occurred, but what he believed happened. Because it's his belief
that controls his credibihty, what he testified to, why he testifies
in the way he testifies, why he signed the agreement and why he
testified in this case.
(2/11/00, 34).^^
There is no indication that Syed ever renewed this motion to strike
following Wild' s continued cross-examination after this ruling on February 1 0,
2000, nor on February 11,14, and 1 5, 2000. Thus, this issue is not preserved
as to those trial dates. See Watkins v. State, 328 Md. 95, 99-1 00 (1992) (where
a party acquiesces in a court's ruling, there is no basis for appeal fi^om that
ruling); Grandison v. State, 305 Md. 685, 765, cert .denied, 479 U.S. 873
(1986) ("By dropping the subject and never again raising it, [appellant] waived
his right to appellate review"). Moreover, even if preserved, the claim is
without merit. This Court has stated:
Assuming, arguendo^ that the State violated the discovery
rules, Maryland Rule 4-263(i) gives a trial court the discretion
to fashion remedies for a discovery violation. The purpose of
the discovery rules is to "assist the defendant in preparing his
defense, and to protect him from surprise."
Rosenbergv. State, 129 Md, App. 221, 259, cert, denied, 358 Md. 382 (1999);
see also Johnson v. State, 360 Md. 250, 265 (2000) (scope of pretrial
disclosure mandated by the Rule must be determined in light of these
underlying policies).
As noted in the Statement of Facts, Syed continued cross-examining
Wilds for approximately rvvo and a half more days concerning these very
matters.
38
Further, "[t]he question of whether any sanction is to be imposed for a
discovery violation, and if so what sanction, is in the first instance committed
to the discretion of the trial judge, and ... the exercise of that discretion
includes evaluating whether the violation prejudiced the defendant." Evans v.
State, 304 Md. 487, 500 (1985), cert, denied, 478 U.S. 1010 (1986); accord
Williams v. State, 3 64 Md. 1 60, 1 78 (200 1 ). Here, it is clear that the trial court
properly exercised discretion in denying the motion to strike because the issue
of the plea agreement was already before the jury, and Syed elicited that the
prosecutor may have assisted Wilds in obtaining counsel. (2/10/00, 156).
Further, although Syed claimed surprised, at the bench conference, it is
apparent that Syed was not surprised about the issue, but was surprised "that
I would ever be able to prove it." (2/10/00, 162). The court fashioned an
appropriate remedy, commensurate with any alleged violation, that allowed
Syed to argue Wilds's credibility based on the arrangement, because it was
Wilds's "belief that controls his credibility," (2/1 1/00, 34). Thus, the motion
to strike was properly denied.
E. The trial court properly exercised discretion in denying Syed's
motion to compel.
Syed then made another motion, requesting full disclosure of the
manner in which Wilds selected legal representation. (2/11/00, 41-44). The
court denied that motion as well, ruling, in part:
The motion is denied. The information that you are seeking to
contain [sic] would be information that Mr. Wilds would have
a privilege, that is how he chose a lawyer, the circumstances
under which he chose a lawyer. . . .
(2/11/00,44).
39
Syed continued to argue that he wanted infonnation regarding the role
Mr. Urick played in assisting Wilds obtain representation. (2/1 1/00, 46). The
court stated:
I understand your point, but as I stated before, I believe
the infonnation you wish to obtain can be obtained from another
source, is readily available to you and the sum of substance of
which has already been provided to you to allow you to
adequately challenge the credibility of Mr. Wilds
(2/11/00, 47).
It has been held that a trial court has inherent discretionary power to
compel disclosure of infonnation in control of the State. See McKenzie v.
State, 236 Md. 597, 602-03 (1964) (no abuse of discretion to deny request for
disclosure at trial of written statements of prosecution witnesses, as there was
no showing that statements in fact existed or that they were material to case).^*
It is apparent in this case that the trial court did exercise discretion in
considering whether to grant Syed's motion to compel discovery of this
information. Indeed, in response to further argument on the matter by Ms.
Gutierrez, the court crystal ized its ruling:
But the sum of substance of the plea agreement is
contained therein. You also have the testimony of Mr. Wilds.
Although the infonnation that you have received by way of his
testimony is one that has come through a course of a number of
days. You've gotten it si.x or seven days ago on Friday, you got
additional information yesterday and I find that you have an
adequate amount of information in order so that you can one,
prepare your defense and utilize the information.
^"^ Additionally, although not a basis for the lower court's ruling, Md.
Rule 4-263 (f) includes a time limit for filing motions to compel discovery,
and also suggests that the parties negotiate in good faith prior to a court having
to consider a motion to compel.
40
Two, challenge the credibility of the witness and utilize
the information and three, fashion questions during your cross
and in an attempt to get more information and four, if necessary,
1 call an additional witness and have that additional witness
provide you with additional information. So, I believe that all
of those items are readily available to the Defense, I do not find
that in any way it interferes with your client's due process rights
or in any way interferes with his ability to have an effective and
adequate representation by his attorney on this issue or that you
have been in any way harmed by the delay in receiving some
bits and parts of that information. That you still have the
witness on the stand, that he still can be questioned, that the
Court has given you latitude in that regard as well as latitude at
some later point to view the tape which I have just directed Ms.
Connelly to get because I understand it is available, that there's
only one copy. I've also directed Ms. Connelly to get a video
machine for your use and during the lunch and recess if you
would like to view that tape it will be available for you do that
and after reviewing the tape if you fell that there are some
additional questions that the tape triggers you are welcome to
ask those questions.
But to the extent that I believe I have provided you with
an opportunity to address these issue's and adequately defend
your chent I don't believe his rights in any way have been
abridged, interfered with or that his due process rights have been
abridged or interfered with. That any notice requirements that
arguably the benefit that appears to have developed through the
testimony can be addressed adequately by your questions and
the information that you've received at this time.
(2/1 1/00, 48-50)."
The court also granted Syed's motion to conduct a hearing whereby
Wilds's counsel, Ms. Benaroya, would be questioned outside the presence of
the jury. (2/11/00,50). After that hearing, the court found that Benaroya's
(continued...)
41
F. The trial court properly exercised discretion in denying Syed's
request to recall Wilds after five days of cross-examination, and
in denying Sved's request to call Wild's attorney as a witness .
Syed also asserts tiiat the trial court erred in not permitting him to recall
Wilds to the stand and to call Wilds's attorney, Ms. Benaroya. (App. Br. 43).
Following the five days of cross-examination of Wilds, the trial court
conducted a hearing, outside the presence of the jury on Syed's request to call
Benaroya. (2/18/00,2-54). Ms. Gutierrez was permitted to ask Benaroya how
she came to represent Wilds. Benaroya testified that Mr. Urick had introduced
her to Wilds, and Benaroya made the independent determination to represent
Wilds. (2/18/00, 4). Benaroya explained that Urick did not ask her to
represent Wilds, only to come and meet him. (2/18/00, 5-6), Benaroya
testified:
Not about representing him. I had about -just Mr. Urick
had been really, perhaps deliberately vague about what he
wanted me to do. He had asked me to come to the office and
talk to the young man. That was really about the extent of it.
He had not asked me to represent him.
(2/18/00, 5-6).
Benaroya told Wilds that she did pro bono work. (2/18/00, 7). During
the t^^'o orthree hour conversation between Benaroya and Wilds, no one from
^'(...continued)
testimony was not relevant, would be cumulative, and would confuse the jury.
(2/18/00, 46). This was an appropriate evidentiar>' ruling and the trial court
property exercised its discretion in denying Syed's request to call Ms.
Benaroya to the stand. See Md. Rule 5-403 (even relevant evidence may be
excluded if probative value outweighed by "confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.").
42
the State's Attorney's Office bothered them. (2/18/00,12). Benaroyatestijfied
she had no independent knowledge of the case other than what Wilds told her.
(2/18/00, 6-7). Benaroya testified that when she spoke to Wilds, he had not
yet been formally charged. (2/18/00, 13). When fonnal charges were filed,
Benaroya was representing Wilds, (2/18/00,14). Benaroya told Wilds she
would represent him pro bono. (2/18/00,15). At some point after she had
decided to represent Wilds, Benaroya told Urick that she would be
representing Wilds pro bono. (2/18/00, 15).
Benaroya identified her signature on the plea agreement. (2/1 8/00, 24).
Benaroya testified that the only change in the plea agreement was to boiler
plate language in the standard form regarding narcotics cases, and this was not
a narcotics case. (2/18/00, 25-26). Benaroya then testified that it was her
understanding that there was a mutual right to withdraw the plea. (2/1 8/00,
27). She testified that the State could withdraw the agreement if Wilds
testified untruthfully at trial. (2/1 8/00, 28). It was also her understanding that
Wilds could withdraw the plea, and that information was passed on to Wilds.
(2/1 8/00, 32). Benaroya told Wilds he could withdraw the plea in a hearing in
front of Judge McCurdy. (2/18/00, 33)." Benaroya testified that the in
chambers hearing before Judge McCurdy was to address Wilds's concerns,
and that "if this gentleman did not want to continue in this, he had absolutely
the right to withdraw the plea and he would be put right where he was before
he had met me." (2/18/00, 34-35). At the conclusion of this hearing. Wilds
Pursuant to Md. Rule 4-242 (g), "[a]t any time before sentencing, the
court may permit a defendant to withdraw a plea of guilty or nolo contendere
when the withdrawal serves the interests of justice."
43
wanted to continue pursuant to the plea and wanted Benaroy a to remain as his
attorney. (2/18/00,35-36).
Ms. Gutierrez then began inquiry into privileged communications
between Benaroya and Wilds, and the court interrupted, informing Benaroya,
who had been sequestered as a witness called by the defense, that her client
had not waived his attorney-client privilege. (2/1 8/00, 39-40). Syed's counsel
then began questioning Benaroya on whether withdrawal of the plea by Wilds
was some sort of "side" agreement, and the court found that Benaroya's
testimony would be cumulative and irrelevant. The court ruled, in part
Everything that you're talking about is already in front of
the jury. In fact, the "it smelled fishy" is in front of the jury, and
this witness -
MS. GUTIERREZ: No, Judge. I think if you let me
continue, what this witness will say is that she negotiated that
benefit, the right to absolutely withdraw the plea at his option,
with Mr. Urick on the T^
THE COURT; It's already before the jury.
MS. GUTIERREZ: No, Judge, it is not.
THE COURT: The defendant's -
MS. GUTIERREZ; Mr. Wilds did not testify to that.
THE COURT: Mr. Wild's understanding of the plea, the
plea that doesn't exist, the plea that's not really a guilty plea, the
plea where the statement of facts has not been entered, the one
that really isn't a guilty plea even if we want to call it a guilty
plea, that thing, that hearing he believes it to be a guilty plea.
He believes it was hearing based on a truth agreement.
44
MS. GUTIERREZ: Just I'm not disputing -
THE COURT: And all of that is in front of the jury. It's
all there. You already have it. It's in, you can argue it.
MS. GUTIERREZ: Judge, the deal is not there, the plea
agreement is before the jury as being the only deal that obligates
Mr. Urick and Mr. Wilds. And that is a He. And the lie is not
in front of the jury. That is, that there is a little side deal that
was negotiated at the same time as the plea.
THE COURT: Ms. Gutierrez, that is not a side deal
because, as a matter of law, as a matter of law, it doesn 't matter
what Mr. Urick and Ms. Benaroya and the defendant agreed to.
The Court is not bound by his piece of paper. The Court is
bound by the law.
And the law says that if it was a guilty plea, if it was a
guilty - and I say "if," - if it was a guilty plea, the law says he
can withdraw it. And Mr. Urick can't give a benefit that he
doesn't have to give. It's not his benefit.
(2/18/00, 42-44) (emphasis added).
Syed continued to request that Benaroya be called as a witness to testify
concerning negotiations over the plea agreement. The court concluded:
I don't believe this witness offers us any additional information.
I don't believe that even if it's relevant that it does anything
more than to confuse the jury or could be used to confuse the
jury-
And for that reason, I don't believe that it's going to be
appropriate and it is not going to be permitted in this case.
(2/18/00, 46).
The next trial date, Syed informed the court that he wanted to recall
Wilds for further examination. (2/22/00, 61). Syed wanted to inquire whether
45
Wilds could withdraw his plea agreement after September 7, 1999, which Syed
continued to argue was a "side deal" and a benefit of the bargain. (2/22/00,
63-65). The court ruled that all the appropriate information there was to be
had about the plea agreement was before the jury: »
As I indicated previously, I believe that calling Ms.
[Benaroya] would not be appropriate and it would just take us
off on a needless presentation of evidence. And I would find
that the credibility of Mr. Wilds has been exhausted. The ability
to cross-examine him and bring out those things that might have
affected his testimony and his credibility was done, and I believe
that clearly it was what was in the mind of the Defendant at the
time that he - the Defendant meaning Wilds - entered into this
agreement, and he testified as to that. He's not a lawyer, he
doesn't know what the Rules of Maryland provide, that even
with a guilty plea and even if he signed something, that a judge
could allow him to withdraw his plea under circumstances
where the Court determined it would be appropriate
(2/22/00, 74)."
Wilds testified before the jury previously that he understood the plea
agreement to be a "truth agreement," and that if he held up his end of the deal,
the State would recommend a certain disposition. (2/4/00, 163, 217) He
testified that he understood that if he held up his end of the bargain, the State
would recommend a sentence of five years, with all but two years suspended,
and that, if the State was not satisfied, it would recommend five years in prison
for Wilds. (2/15/00, 121-23). He also testified before the jur>' that at some
point. Judge McCurdy did ask Wilds if he wanted to withdraw the plea
agreement. (2/1 1/00, 202, 208-09). Wilds testified he did not indicate that he
wanted any such alteration or withdrawal of the plea. (2/1 1/00, 1 62-63). It is
apparent that by these responses Wilds believed he had entered into a valid
plea agreement, and that, by the fact of Judge McCurdy asking if he wanted to
withdraw the plea, that he knew he could withdraw if he so chose. Thus, all
these facts were before the jur>'.
46
It is clear that the trial courtproperly exercised discretion in considering
whether Syed could call Benaroya and recall Wilds. The court conducted a
hearing outside the presence of the jury, and at the conclusion, determined that
Benaroya 's testimony added nothing to the case that was not already before the
jury. See Md. Rule 5-403 (even relevant evidence may be excluded if
probative value outweighed by "confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence."). Further, as to Syed's repeated
insistence that there was some sort of "side deal" whereby Wilds could
withdraw his plea at any time, the law specifically allows withdrawal of a
guilty plea at any time before sentencing in "the interests of justice." Md. Rule
4-242 (g). Because the law permits withdrawal of a plea, that is not a benefit
that requires disclosure, and the trial court properly exercised its discretion in
denying Syed's request to recall Wilds and to call Benaroya. See Thomas v.
State, _ Md. App. No. 255, Sept. Term, 2001 (filed March 1, 2002) (slip
op. at 9) (the conduct of the trial "must of necessity rest largely in the control
and discretion of the presiding judge," and an appellate court should not
interfere with that judgment unless there has been error or clear abuse of
discretion) (citing Wilhelm v. State, 111 Md. 404, 413 (1974); Simpson v.
State, 121 Md. App. 263, 283 (1998)); see also Oken v. State, 327 Md. 628,
669 (1992) ("the scope of examination of witnesses at trial is a matter left
largely to the discretion of the trial judge and no error will be recognized
unless there is a clear abuse of discretion"), cert, denied, 501 U.S. 93 1 (1993).
47
G. The trial court properly denied Syed's request to call Elizabeth
Julian as a witness to testify to the process by which a charged
defendant applies for representation from the Public Defender .
Syed next argued that he wanted to call Ms. Elizabeth Julian, a member
of the Office of the Public Defender, in order to testify that it was unusual for
a prosecutor to recommend a lawyer for a State's witness. (2/23/00, 217).
The court clarified, again, the testimony at trial. (2/23/00, 219). The court
reiterated that Wilds testified he had contacted the Public Defender's Office
before he was charged and was informed they could not represent him until he
was charged. (2/23/00,219). The court then indicated there was no further
testimony by Wilds that he ever tried to contact the Public Defender's Office
again. (2/23/00, 219). Syed then misrepresented the testimony, as he does on
appeal, and claimed that the day he came to enter the plea, "a lawyer was
provided to him by a prosecutor." (2/23/00, 219; App. Br. at 48). The court
stated, "[t]hat wasn't what the testimony was." (2/23/00, 219). The facts
established that Benaroya had not decided whether or not to represent Wilds,
and Wilds had not decided at that time to accept Benaroya as his attorney,
(2/23/00, 219). The trial court disagreed with Syed's characterization and
stated, "to say that the State provided the lawyer assumes Mr. Wilds had no
say in the decision." (2/23/00, 220). The court also noted that perhaps Ms.
Julian's testimony would have been relevant "[i]f they called the public
defender," and Wilds "didn't call the public defender." (2/23/00, 222).
Further argument on the matter ensued, with Syed's attorney arguing that even
the fact of the prosecutor introducing Benaroya to Wilds and vice versa was
unusual, and that Ms. Julian would testify as to the manner in which
48
defendants charged with crime seek representation from her office. (2/23/00,
230-32). The trial court denied the request, ruling:
» Well, I think you're absolutely right, it doesn't resolve
the issues, and I think the issues that we're discussing right now
^ are for another day and another proceeding. It has nothing to do
with Mr. Syed because I don't find that asking Ms. Julian any
questions about what could have happened, what might have
happened, what should have happened on a day that did not
occur because Mr. Wilds did not choose to utilize the Office of
the Public Defender - he did not choose to do that, that was his
decision. He's testified already about his decision and why he
made it and was cross-examined at length about why he did that.
For Ms. Julian, who had no contact with Mr. Wilds, to
come in and talk about what could have, should have, might
have happened had Mr. Wilds decided to make application to
the Public Defender's Office is not relevant to this proceeding
because he did not decide to do that. In fact, he decided not to
do that by his decision to take the attorney that he interviewed,
he questioned, and decided that he wanted. And to have Ms.
Julian come in serves no purpose in the interest of justice or a
furtherance of this case. . . .
(2/23/00, 237-39).
Ms. Gutierrez continued to argue the trial court's ruling, and the trial
court responded as follows:
THE COURT: Why don't I state it very cleariy?
Whether or not the prosecutor having a defense attorney in his
office through which a defendant might decide or not to decide
to utilize the pro bono services of that lawyer, and that lawyer
deciding to or not to represent that defendant, that circumstance
being rare or not might be relevant, but I am finding is going to
be excluded because I find that the probative value is
substantially outweighed by confusing the issues and misleading
the jury. It also is needless presentation of what I find to be
49
cumulative evidence. You have the facts in front of you which
you can argue in closing.
MS. GUTIERREZ: Does the Court -
THE COURT: You have the fact that Mr. Urick was
there. You have the fact that Mr. Wilds decided at the same
time that he was presented with the plea agreement. You have
the fact that he read through that and Ms. [Benaroya] was there.
She was available. He decided, after talking to her and meeting
with her, for whatever reason, to have her as his lawyer. You
have before the jury all of that information which you can argue
whatever inferences you want to argue are established by that
evidence. You can argue that that's a benefit. You have the
plea agreement which talks about the role of the state's attorney.
You have the fact that it's signed by Mr. Urick and you can
argue all the clauses that allow the State to do whatever the State
could do if they don't like the way Mr. Wilds testified, and all
the things that are contained.
All of that evidence you currently have before you by the
witnesses who have testified. If you want to argue that, you are
well within your right to argue that in closing, but you're not
going to bring in collateral witnesses who don't have any
personal knowledge to add to those facts, who have never talked
to Mr. Wilds on this issue, nor Ms. [Benaroya] on this issue,
who have no first hand knowledge.
And, in fact, whether this be rare or not, I find that even
if it's relevant that it's rare, the evidence may be used
improperly by this jury. So that the inferences stand as what
they are and they can be argued by you or by the State or by
both of you.
(2/23/00, 241-43).
Ms. Gutierrez continued to argue over the court's ruling and indicated
that Ms. Julian would be called to testify that the introduction of Benaroya to
50
Wilds was "rare." (2/23/00, 244). The court issued a final ruling on whether
it would permit Syed to call Ms. Julian:
s In order to assist counsel, let me make myself clear. Any
witness that talks about the rareness of the procedure used in
obtaining a lawyer that was present in the State's Attorney's
Office and available to a defendant is not going to be admitted
in this case, it will be excluded under 5-403.
Wilds testified before the jury that he spoke with the Public Defender's
Office, but they would not provide him with representation until he had been
charged. (2/15/00, 39-40). He explained that on the day that he met the
prosecutor, the prosecutor informed him that he had someone he wanted Wilds
to meet. (2/1 5/00, 58-59). After meeting with Benaroya, Wilds testified that
he felt he had a choice in selecting his own attorney. (2/15/00, 148).
Further, as to any concern that the introduction between Wilds and
Benaroya was rare, such an inference could have been properly drawn by
Wilds 's own testimony that he initially thought, after the plea hearing, that
something "smelled fishy."(2/l 5/00, 1 30-33). The jury heard Wilds testify
that, at some point, he thought Urick had provided him with a lawyer.
(2/1 5/00, 127-28). Wilds also testified that he thought there might have been
a conflict, and that, he was unsure if Benaroya had been brought in more for
the prosecutor's benefit than for his. (2/15/00, 130-33). At the end of the day,
however, Wilds was satisfied with Benaroya's representation. (2/1 5/00, 148).
There is no indication that Wilds ever contacted the PubUc Defender's
Office after he was charged, and after he selected Benaroya to represent him.
Thus. Ms. Julian's proffered testimony concerning the procedures by which a
criminally charged, financially eligible, individual applied to the Public
Defender's Office for representation was not relevant where Wilds did not
51
fonnally apply after he had been charged. Moreover, as for whether or not the
procedure was "rare," the jury had before it testimony from Wilds himself that
he thought, at some point, that things "smelled fishy." Ultimately, the trial
court's decision pursuant to Md. Rule 5-403 in denying Syed's request to call
Ms. Julian, a person with absolutely no personal knowledge of the case, was
a proper exercise of discretion.
H. There was no prosecutorial misconduct in Syed's trial and Syed
was not prejudiced by any belated disclosures of information
concerning State's witness. Jay Wilds.
Finally, the last matter left unaddressed in this first issue is whether the
prosecutor's actions herein constituted prosecutorial misconduct. This Court
recently held:
With respect to prosecutorial misconduct generally,
actual prejudice must be show before the sanction of dismissal
or reversal of a conviction can be properly imposed. See Bank
of Nova Scotia v. United States, 487 U.S. 250 (1988); United
States V. Hasting, 461 U.S. 499 (1983); United States v.
Brockington, 849 F.2d 872 (4'^ Cir. 1988). Even deliberate or
intentional misconduct may not serve as grounds for dismissal
absent a finding of prejudice to the defendant. See United States
w Derrick, 163 F.3d 799 (4'" Cir. 1998).
State V. Deleon, __ Md. App. No. 866. Sept. Term, 2001 (filed April 3,
2002) (slip op. at 28).
Here, there was no actual prejudice because Syed was provided more
than ample opportunity to cross-examine Wilds over five days of examination
and was able to elicit all relevant information concerning the plea agreement
and the manner in which he was introduced to Ms. Benaroya. In sum, the trial
court properly exercised discretion in its evidentiary rulings with respect to Jay
52
Wilds, and there was no Brady violation given that all issues argued on appeal
by Syed were completely before the jury prior to deliberations.
II.
THE TRIAL COURT PROPERLY EXERCISED
DISCRETION IN PERMITTING A WITNESS TO READ A
PORTION OF A LETTER WRITTEN BY THE VICTIM AND
ADDRESSED TO SYED.
In his second issue presented, Syed claims that the trial court erred in
permitting a witness to read a letter from H^e Lee to Syed, on the ground that
"[t]he hearsay letter of the victim allegedly written over two months before her
disappearance does not fall under any exception to the hearsay rule." (App.
Br. 53-54). This argument is without merit.
At trial, Aisha Pittman, a friend of both Hae Lee and Syed, testified that
the front of State's Exhibit 38 was a letter from Hae to Syed, and the back of
that letter contained notes between Syed and Pittman. (1/28/00, 242-243).^^
After the exhibit was identified by Pittman, and when the State moved to
introduce the letter, Syed objected generally to its admission. (1/28/00, 243),
The trial court noted the objection, then asked that a time frame be established
as to when the letter was written. (1/28/00, 243). Pittman testified the letter
was written early November. ( 1 /28/00, 244). The letter was admitted over
objection. (1/28/00, 244). When the State asked to read the letter, Syed again
Pittman testified that the handwriting in pen on the back was Syed's,
and that the handwriting in pencil was hers. (1/28/00,243). Written in pen on
the back was "I am going to kill." ( 1 /28/00, 248). Pittman testified that phrase
was not on the back of the letter when she was writing notes back and forth to
Syed. (1/28/00, 253). On appeal, Syed does not challenge the admissibility
of the back of the letter. Syed's complaint is as to the writings by the victim,
Hae Lee.
53
objected to the witness reading the letter and preferred that the jurors be
permitted to read it. (1/28/00,245). The court permitted the witness to read
from the exhibit. (1/28/00, 245-46).''
Pittman then read from the front of the letter as follows:
A. "Okay. Here it goes. I'm really getting annoyed that
this situation is going the way it is. At first I kind of wanted to
make this easy for me and for you.
"You know people break up all the time. Your life is not
going to end. You'll move on and I'll move on. But apparently
you don't respect me enough to accept my decision.
"I really couldn't give damn [sic] about whatever you
want to say. With the way things have been since 7:45 am this
morning, now I'm more certain that I'm making the right
choice.
The more fuss you make, the more I'm determined to do
what I gotta do. I really don't think I can be in a relationship
like we had, not between us, but mostly about the smff around
us.
I seriously did expect you to accept, although not
understand. I'll be busy today, tomorrow, and probably till
Thursday."
THE COURT; Is there something that you cannot read?
" Although Syed did not specifically object on the grounds of hearsay,
it is apparent that the general objection preserves the issue for appeal. See
State V. Jones, 138 Md. App. 178, 218 (2001J (if ageneral objection is made,
and neither the court nor a rule requires otherwise, it "is sufficient to preser\'e
all grounds of objection which may exist") (quoting Grier v. State, 351 Md.
241, 250 (1998)), cert, granted, 365 Md. 266 (2001) (argued December 3,
2001)."
54
THE WITNESS: There is.
THE COURT: Then say, "There's something I cannot
? read."
THE WITNESS: There's something I can't read. "Other
things to do. I better not give you any hope that we'll get back
together. I really don't see that happening, especially now.
I never wanted to end like this, so hostile and cold, but I
really don't know what to do. Hate me if you will, but you
should remember that I could never hate you."
Signed, "Hae."
(1/28/00, 246-47).
Here, the letter was admissible under two alternate theories: (1) it was
nonhearsay entered to show that Hae Lee and Syed had been in a prior
relationship; and/or (2) it was evidence tending to show Hae Lee's future
action of ending that relationship under Maryland Rule 5-803 (b) (3). Hearsay
is defined as "a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted." Maryland Rule 5-801 (c). An out-of-court statement is
admissible if it is not being offered for the truth of the matter asserted or if it
falls within one of the recognized exceptions to the hearsay rule. Conyers v.
Slate, 354 Md. 132, 158 (1999). In Conyers, the Court quoted from McLain
on Evidence and stated that:
Statements offered, not to prove the truth of the matters asserted
therein, but as circumstantial evidence that the declarant had
s knowledge of or believed certain facts or had a particular state
of mind, when that knowledge, belief, or state of mind is
relevant, are nonhearsay.
55
Conyers, 354 Md.a.t 159.
Only if the statement is offered for the truth of the thing asserted is the
credibility of the declarant called into question. Holland v. State, 122 Md.
App. 532, 544, cerL denied, 351 Md. 662 (1998). Thus, if a statement is not
offered for the truth of the matter asserted, the credibility of the declarant is
irrelevant, and the admission of the statement does not implicate the
Confrontation Clause. An out-of-court statement is nonhearsay if it is offered
as narrative background or to explain a witness's actions. See, e.g., Holland,
122 Md. App. at 542 (the recounting of the statement, "[t]here they are," viras
nonhearsay and simply provided narrative background as to why the police
officer arrested the appellant when he did); Williams v. State, 99 Md. App.
71 1 , 725 (1994) (witness's recounting of statement made by flie person being
arrested would have been nonhearsay if offered to show the circumstances
surrounding the attempted arrest at issue), ajf'd on other grounds, 344 Md. 358
(1996).
Here, the letter established circumstantially that Syed and Hae Lee were
in a boyfiiend/girlfiiend relationship. That they were in a relationship that
ended tends to show, circumstantially, that Syed had a motive to kill Lee.
"Motive is the catalyst that provides the reason for a person to engage in
criminal activity." Snyderw Stare, 361 Md. 580, 604 (2000) (evidence thatthe
petitioner and victim had a "stormy" relationship, and that there was a fight
between the two one night before the murder was "probative of a continuing
hostility and animosity" toward the victim and therefore, of motive to murder);
see also Brown v. State, 359 Md. 180, 184 (2000) (finding that purpose of
murdering pregnant mistress was not wanting wife to discover infidelity);
Watkihs v. State, 357 Md. 258, 261-62 (2000) (determining that purpose of
56
robbery was greed); Johnson v. State, 2>2>1 Md. 456, 471 (1993) ("Like intent,
motive is a mental state, the proof of which necessarily requires inferences to
s be drawn from conduct or extrinsic acts."); Jones v. State, 1 82 Md. 653(1 944)
(evidence of previous quarrels and difficulties between a victim and a
defendant is generally admissible to show motive)
Furthermore, the letter was admissible to show Hae Lee intended to end
the relationship between herself and Syed. Maryland Rule 5-803 (b) (3)
provides for an exception from the hearsay rule for :
[a] statement of the declarant's then existing state of mind,
emotion, sensation, or physical condition (such as intent, plan,
motive, design, mental feeling, pain, and bodily health), offered
to prove the declarant's then existing condition or the
declarant's future action, but not including a statement of
memory or belief to prove the fact remembered or believed
unless it relates to the execution, revocation, identification, or
terms of declarant's will.
This exception "is not monolithic, but embraces two subspecies: 1) a
declaration of present mental or emotional state to show a state of mind or
emotion in issue, and 2) a declaration of intention offered to show subsequent
acts of declarant." Gray v. State, 137 Md. App. 460, 500 (2001) (quoting
Robinson v. State, 66 Md. App. 246, 257 (1986)), rev'd on other grounds,
Md. _, No. 37, Sept. Term, 2001 (filed April 1 1 , 2002). "Generally speaking,
the scope of examination of 'witnesses at trial is a matter left largely to the
discretion of the trial judge and no error will be recognized unless there is an
abuse of such discretion." Oken v. State, 327 Md. 628, 669 (1992), cert,
denied, 507 U.S. 93 1 (1993). The textbook case on future intent isMutualLife
Insurance Co. v. Hillmon, 145 U.S. 285 (1892), wherein the Supreme Court
held: "The existence of a particular intention in a certain person at a certain
57
time being a material fact to be proved, evidence that he expressed that
intention at that time is as direct evidence of the fact as his own testimony that
he then had that intention would be." Id. at 295. In McCray v. State, 305 Md.
126 (1985), the Court of Appeals reaffirmed that:
evidence of declarations of a plan, design or intention presently
entertained by the declarant is, subject to the usual limitations as
to remoteness in time and apparent sincerity common to all
declarations of mental state, admissible when offered as
evidence that the design was carried out by acts or omissions of
the declarant.
Id. at 140; see also Lynn McLain, Maryland Rules of Evidence § 5-803, at 237
(1994) (Rule 5-803 codifies Hillmon in that "it approves the admissibility of
the declarant's statement of intent, to prove the declarant*s future actionf.]";
Kirkland v. State, 75 Md. App. 49, 55-56 (1988) ("The Hillmon Doctrine
allows the trial court to admit [defendant's] statement as circumstantial
evidence that he carried out his intention and performed the act.").
This Court has stated that "[ujnder this exception, certain forward-
looking statements of intent are admissible to prove that the declarant
subsequently took a later action in accordance with his stated intent." Farah
V. Stout, 112 Md. App. 106, 119 (1996), cen. denied, 344 Md. 567 (1997);
Carlton v. State, 1 1 1 Md. App. 436, 445 (rule retains common law hearsay
exception for "statements of a declarant's present state of mind that looks to
the future"), cert, denied, 344 Md. 328 (1996); see also Gray, 137 Md. App.
at 500 (murder victim's statements of "her then-existing intention to tell
[defendant] that she wanted a di\"orce were admissible to prove that she did
so."); Case v. State, 118 Md. App. 279, 283-85 (1997) (evidence that victim
58
had made statements that indicated her fear of appellant were relevant and
admissible on issue of whether victim's death was an accident or a homicide).
' Thus, the letter tended to establish that Hae Lee carried through with
her statements and did, in fact, end the relationship with Syed. The fact that
there may be other evidence which also established that Syed and Lee ended
their relationship is of no moment. "Evidence is relevant (and/or material)
when it has a tendency to prove a proposition at issue in the case." Johnson
V. State, 332 Md. 456, 474 n.7 (1993). Further, a ruling on the relevance of
evidence is "a matter which is quintessentially within the wide discretion of
the trial judge." Best v. State, 79 Md. App. 241, 259, cert, denied, 317 Md.
70 (1989); see also Snyder v. State, 361 Md. 580, 591 (2000) ("[A] party
seeking to establish the relevancy of proffered evidence does not have to
demonstrate that the evidence is weighty enough to carry that party's burden
of persuasion."); Ware v. State, 360 Md. 650, 672-73 (2000) (holding that
statement by appellant asking person if he was "bulletproof," was properly
admissible), cert, denied, 121 S.Ct. 864 (2001). Here, the letter was probative
to an issue in the case, whether Syed had a mptive to strangle Hae Lee to death
based on the end of their relationship. The trial court properly exercised its
discretion in admitting the evidence.
Moreover, any error was harmless beyond a reasonable doubt. See
Dorse)' v. State, 276 Md. 638, 659 (1976) (error will be harmless when
reviewing court, upon independent review, is able to declare a belief beyond
a reasonable doubt that there is no reasonable possibility that the error
contributed to the verdict). The fact that there was a prior relationship between
Syed and Hae Lee, a relationship which was established repeatedly throughout
the trial by other evidence. (1/28/00, 140-41, 217-24; 1/3 1/00, 25-27; 2/3/00,
59
85-88; 2/16/00, 298-305; 2/17/00, 6-14, 24-30, 34-57, 119-21, 260-65;
IIIVQO, 142). Additionally, that they broke up prior to the murder, in part due
to differences over religion, was also repeatedly established at trial. (1/28/00,
140-42, 145, 218, 221-25; 1/31/00, 30-31; 2/3/00, 88; 2/16/00, 300-01;
2/17/00, 37-62; 2/23/00, 144-45). Thus, any error in letting the witness read
the letter was haimless beyond a reasonable doubt.
III.
IF PRESERVED, THE TRIAL COURT PROPERLY
EXERCISED DISCRETION IN ADMITTING THE VICTIM' S
DIARY INTO EVIDENCE.
Syed's final contention on appeal is that the court erred by admitting
Hae Min Lee's diary. (App. Br. 55). The issue is not preserved, and is
without merit in any event. At trial, Hae Min Lee's brother. Young Lee,
testified that State's Exhibit Number 2 was Hae Lee's diary. (1/28/00, 31).
The diary was offered into evidence, without objection. (1/28/00, 32). Thus,
this issue simply is not preserved for appellate review. See MA. Rule 4-323 (a)
(requiring a timely objection when evidence offered); Conyers v. State, 354
Md. 132, 149-50 (1999) (relying on Rule 4-323 which describes the proper
method for making objections at trial), cert, denied, 528 U.S. 910 (1999); see
also Caviness v. State, 244 Md. 575, 578 (1966) (observing that "unless a
defendant makes timely objections in the lower court or makes his feelings
known to that court, he will be considered to have waived them and he can not
now raise such objections on appeal"); Davis v. State, 189 Md. 269, 273
(1947) ("[S]ome objection [must] be made and ... the court [must] rule upon
the question. In the absence of such a ruling there is nothing for the Court of
Appeals to review."); Leuscliner v. State, 41 Md. App. 423, 436 (1979)
60
(holding that "[i]t is axiomatic that to preserve an issue for appeal some
objection must be made or a party will be deemed to have waived an
4 objection"); Gaylord v. State, 2 Md. App. 57 1 , 575 ( 1 967) (declaring that "a
defendant in a criminal prosecution cannot raise for the first time on appeal an
objection which was available to him at the trial and which he did not raise
below).
Syed seeks to argue that the claim is preserved where, nineteen days
later, counsel objected to a witness's reading of portions of the diary. (App.
Br. 56-57).^" Syed's objection to the witness's reading of excerpts from the
diary is a general objection, and there is no indication why, nineteen days after
the diary had been admitted without objection, Syed was objecting on this
occasion. Nevertheless, even if a general objection was sufficient, general
objections must still be timely. See Md. Rule 4-323 (a); Conyers, 354 Md. at
149-50; see also Vandegrift v. State, 82 Md. App. 617, 637-38 (objection to
introduction of chemist's report came too late since a witness had already
testified to its contents without objection), cert, denied, 320 Md. 801 (1990);
Grant v. State, 76 Md. App. 165, 171-72 (1988) (although counsel objected on
the grounds of hearsay by the time the evidence was offered into evidence,
three other witnesses had already testified as to its contents), rev 'd on other
grounds, 318 Md. 672 (1990); Holloway v. State, 26 Md. App. 382, 389-96
(although error to admit third statement, since two earlier statements entered
Syed also indicates that the issue of the diary was before the lower
court based on the State's pre-trial motion to admit excerpts from the diary.
(App. Br. 58). Notably, that motion was filed before the first trial, and, in that
first trial, Syed indicated he had no objection to the admission of the diary, so
long as it was admitted in its entirety. (12/8/99, 9).
61
without objection, any error was harmless beyond a reasonable doubt), cerL
denied, 276 Md. 745 (1975).''
Additionally, Syed points to an entirely different exchange, not dealing
whatsoever with the diary, concerning the question of whether Hope Schab ' s >■
testimony as to what Hae Lee told her, and what Syed told her, was
inadmissible hearsay. (App. Br. 58). Syed's complaint with respect to
Schab' s testimony is that "the trial court previously ruled that hearsay of the
victim is admissible," (App. Br. 57). Syed objected to Schab' s testimony on
the grounds of hearsay, that it was remote, that it was prejudicial, and that it
was not relevant to establish motive. (1/28/00, 135-37).^^ First of all, Syed's
objection to Schab 's testimony is not even remotely an objection to the
admissibility of the diary. See Klauenberg v. State, 355 Md. 528, 541 (1999)
("It is well-settled that when specific grounds are given at trial for an
objection, the party objecting will be held to those grounds and ordinarily
waives any grounds not specified that are later raised on appeal" ). The
Moreover, and not mentioned by Syed in his brief, although during
this exchange with Warren, Syed objected to reading of the excerpts from May
14, 1998 and May 15, 1998, there was no objection when Warren read from
other excerpts, including januar>' 2, 1999, January 6, 1999, and January 12,
1999. (2/16/00, 305-1 1; 2/17/00, 138). This is further evidence of waiver of
the issue.
Notably, Syed does not cite the passage where counsel argued
Schab's testimony concerning whether Hae Lee and Syed ended their
relationship at Halloween was to tenuous to establish motive because "their
own evidence that they've already put in indicates that they were still and item
-the diary of Hae Min Lee - that they were still an item far into the third week
of December, a period long past the time period that he's speaking of"
(1/28/00, 135). This passage further supports Appellee's position that Syed
did not object to admission of the diary at trial.
62
testimony of Schab came &fter the diary had been admitted without objection.
Even if it somehow could be considered related, it is still an untimely objection
and does not preserve the issue of whether the diary previously admitted
without objection was admissible. See Grant, supra, 76 Md. App. at 171-72;
see also Vandegrift, supra, 82 Md. App. at 637-38; Holloway, supra, 26 Md.
App. at 389-96. Finally, Syed himself introduced evidence from the diary
during his cross-examination of Deborah Warren. (2/17/00, 93-94). See Hunt
V. State, 321 Md. 387, 433 (1990), ceit. denied, 502 U.S. 835 (1991) ("a party
waives his objection to testimony by subsequently offering testimony on the
same matter"). Thus, the issue of admissibility of the victim's diary is not
even remotely preserved for appellate review.
Moreover, even if preserved, the argument is without merit. On appeal,
Syed points to no specific passage in the diary which he argues was hearsay;
instead he argues generally that several passages "reflect in great detail Hae's
feelings for Appellant, and how she was in love with Appellant, her own fear
of being apart from him, and her anguish over the fact that dating is against
Appellant's religious beliefs." (App. Br. 60). Syed's complaint is that these
non-specified "entries" constitute inadmissible hearsay. (App. Br. 61).
In support of that argument, Syed relies upon Banks v. State, 92 Md.
App. 422 (1992). Although Banks does discuss whether statements of a fear
by a victim constitute, inter alia, nonhearsay, one of the bases for admission
of the diary, the Maryland Rule which was at issue in Banks was Md. Rule 5-
803 (b) (1), dealing with present sense impressions, and not Md. Rule 5-803
(b) (3), concerning then existing mental, emotional, or physical condition, the
exception at issue in the case sub judice. Banks, 92 Md. App. at 436.
63
In Banks, the State attempted to introduce statements of the "victim at
various times prior to his death, of fear of his killer." Banks, 92 Md. App. at
426. The State argued that the statements were admissible as "verbal acts," as
nonhearsay to show the state of mind of the victim at the time he was stabbed,
or as present sense impressions, pursuant to a different subsection of Md. Rule
5-803, and thus an exception to the rule against hearsay. Id. at 432-36. This
Court rejected the argument that the statements of fear of appellant were verbal
acts, because verbal acts are "operative legal facts which constitute the basis
of a claim, charge or defense," and the fact that the victim made the
statements, withoutmore, did not establish their relevance. Id. at 432-33. This
Court also ruled that, under the nonhearsay argument, even if the statements
were not offered for their truth, but rather of the victim's state of mind
establishing fear of appellant, the evidence of the victim's fear was irrelevant
to the conimission of the crime. Id. at 434-35. Finally, this Court rejected the
notion that the statements established the present sense impression exception
to hearsay because most of the statements at issue did not concern present
sense impressions, and in the one that did arguably concern such an
impression, there was nothmg to indicate that the statement was made when
the victim "was perceiving the event or immediately thereafter." Id. at 437.
In contrast, the diar>' was admitted, without objection, under either the
theory that it was nonhearsay, or was an exception pursuant to Md. Rule 5-803
(b) (3). Unlike the situation in Banks, and looking to Syed's own description
describing the contents of the diar>', (App, Br. 60), the diary did not reflect any
fear that Hae Lee believed Syed would harm her or kill her. The diary was
relevant to establish circumstantially that Syed and Lee had been in a prior
relationship. Thus, the diary was admissible as nonhearsay.
64
Additionally, Maryland Rule 5-803 (b) (3) provides for an exception
from the hearsay rule for :
5 [a] statement of the declarant's then existing state of mind,
emotion, sensation, or physical condition (such as intent, plan,
^ motive, design, mental feeling, pain, and bodily health), offered
to prove the declarant's then existing condition . . . (emphasis
added).
Under this exception, the diary was admitted to show Hae Lee's then
existing mental and emotional condition, i.e., that she and Syed were involved
in an emotional relationship. In response, Syed asserts that the fact that the
break up between Syed and Hae Lee was over reUgion, and that Hae had been
dated another man was uncontested at trial. (App. Br. 61). Whether the issue
was uncontested is of no moment. The question is whether the admission of
the evidence was relevant. See Johnson, 332 Md. at 474 n.7 ("Evidence is
relevant (and/or material) when it has a tendency to prove a proposition at
issue in the case"). Thus, the diary was properly admitted at trial.
Recognizing the preservation problem present here, Syed seeks to have
this Court invoke plain error review. Plain error is "error which vitally affects
a defendant's right to a fair and impartial trial."CooA' v. State, 118 Md. App.
404, 411-12 (1997) (quoting State v. Daughton, 321 Md. 206, 211 (1990)),
cert, denied, 349 Md. 234 ( 1 998). The appellate courts review only those very
rare cases that are "'compelling, extraordinary, exceptional, or fundamental to
assure the defendant a fair trial.'" Richmond v. State, 330 Md. 223, 236 (1993)
(quoting State v. Hutchinson, 287 Md. 198, 203 (1980)). In deciding whether
to review an instruction absent an objection, this Court typically considers the
egregiousness of the error, the impact upon the defendant, the lawyerly
65
diligence, and the potential of the case to serve as a vehicle for interpreting and
molding the law. Austin, 90 Md. App. at 268-72.
Syed asserts that the diary was "overwhelming prejudicial" and
contained information about the victim's "feelings, her love of her family,
what other people said to her about her relationship with Appellant, and a
plethora of other inflammatory material." (App. Br. 62). Most of the
passages actually cited by Syed in his brief, (App. Br. 56-57), including the
passage, "I'll probably kill myself if I lose him . . (App. Br. 62), are not
prejudicial to Syed. Again, what this establishes is that there was a prior
relationship between Syed and Hae Lee, a relationship which was established
repeatedly throughout the trial by other evidence. (1/28/00, 140-41, 217-24;
1/3 1/00, 25-27; 2/3/00, 85-88; 2/16/00, 298-305; 2/17/00, 6-14, 24-30, 34-57,
119-21, 260-65; 2/23/00, 142), Thus, there is no issue with respect to
admission of the diary in its entirety which warrants plain error review.
CONCLUSION
For the foregoing reasons, the State respectfully requests that the
judgment of the Circuit Court for Baltimore City be affirmed.
Respectfully submitted,
J. JOSEPH CURRAN, JR.
Attorney General of Maryland
STE\'EN L. HOLCOMB
Assistant Attorney General
Counsel for Appellee
HOLCOMBS\Syed.wpd
Times New Roman 13 point
66
PERTINENT PROVISIONS
Maryland Declaration of Rights, Article 21. Rights of accused;
indictment; counsel; confrontation; speedy trial; impartial and
unanimous jury.
That in all criminal prosecutions, every man hath a right to be informed
of the accusation against him; to have a copy of the Indictment, or charge, in
due time (if required) to prepare for his defence; to be allowed counsel; to be
confronted with the witnesses against him; to have process for his witnesses;
to examine the witnesses for and against him on oath; and to a speedy trial by
an impartial jury, without whose unanimous consent he ought not to be found
guilty.
(1981 RepLVol.)
United States Constitution, Amendment VI - Right to speedy trial,
witnesses, etc.
In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and district wherein
the crime shall have been committed, which district shall have been previously
ascertained by law, and to be informed of the nature and cause of the
accusation; to be confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defence.
(1981 Repl. Vol.)
Rule 4-242. Pleas.
(a) Permitted pleas. A defendant may plead not guilty, guilty, or,
with the consent of the court, nolo contendere. In addition to any of these
pleas, the defendant may enter a plea of not criminally responsible by reason
of insanity.
s (b) Method of pleading, (\) Manner. A defendant may plead not
guilty personally or by counsel on the record in open court or in writing. A
^ defendant may plead guilty or nolo contendere personally on the record in
67
open court, except that a corporate defendant may plead guilty or nolo
contendere by counsel or a corporate officer. A defendant may enter a plea of
not criminally responsible by reason of insanity personally or by counsel and a
the plea shall be in writing.
(2) Time in the District Court. In District Court the defendant shall
initially plead at or before the time the action is called for trial.
(3) Time in Circuit Court. In circuit court the defendant shall
initially plead within 15 days after the earlier of the appearance of counsel or
the first appearance of the defendant before the circuit court pursuant to Rule
4-213 (c). If a motion, demand for particulars, or other paper is filed that
requires a ruling by the court or compliance by a party before the defendant
pleads, the time for pleading shall be extended, without special order, to 15
days after the ruling by the court or the compliance by a party. A plea of not
criminally responsible by reason of insanity shall be entered at the time the
defendant initially pleads, unless good cause is shown.
(4) Failure or refusal to plead. If the defendant fails or refiises to
plead as required by this section, the clerk or the court shall enter a plea of not
guilty.
(c) Plea of guilty. The court may accept a plea of guilty only after
it determines, upon an examination of the defendant on the record in open
court conducted by the court, the State's Attorney, the attorney for the
defendant, or any combination thereof, that (1) the defendant is pleading
voluntarily, with understanding of the nature of the charge and the
consequences of the plea; and (2) there is a factual basis for the plea. In.
addition, before accepting the plea, the court shall comply with section (e) of
this Rule. The court may accept the plea of guilty even though the defendant
does not admit guilt. Upon refusal to accept a plea of guilty, the court shall
enter a plea of not guilty.
(d) Plea of nolo contendere. A defendant may plead nolo
contendere only with the consent of court. The court may require the
defendant or counsel to provide information it deems necessary to enable it to
determine whether or not it will consent. The court may accept the plea only
after it determines, upon an examination of the defendant on the record in open
court conducted by the court, the State's Attorney, the attomey for the
defendant, or any combination thereof, that the defendant is pleading
voluntarily with understanding of the nature of the charge and the
consequences of the plea. In addition, before accepting the plea, the court
shall comply with section (e) of this Rule. Following the acceptance of a plea
68
of nolo contendere, the court shall proceed to disposition as on a plea of guilty,
but without finding a verdict of guilty. If the court refuses to accept a plea of
nolo contendere, it shall call upon the defendant to plead anew.
(e) Collateral consequences of a plea of guilty or nolo contendere.
Before the court accepts a plea of guilty or nolo contendere, the court, the
State's Attorney, the attorney for the defendant, or any combination thereof
shall advise the defendant (1) that by entering the plea, if the defendant is not
a United States citizen, the defendant may face additional consequences of
deportation, detention, or ineligibility for citizenship and (2) that the defendant
should consult with defense counsel if the defendant is represented and needs
additional information concerning the potential consequences of the plea. The
omission of advice concerning the collateral consequences of a plea does not
itself mandate that the plea be declared invalid.
(f) Plea to a degree. A defendant may plead not guilty to one
degree and plead guilty to another degree of an offense which, bylaw, may be
divided into degrees.
(g) Withdrawal of plea. At any time before sentencing, the court
may permit a defendant to withdraw a plea of guilty or nolo contendere when
the withdrawal serves the interest of justice. After the imposition of sentence,
on motion of a defendant filed within ten days, the court may set aside the
judgment and permit the defendant to withdraw a plea of guilty or nolo
contendere if the defendant establishes that the provisions of section (c) or (d)
of this Rule were not complied with or there was a violation of a plea
agreement entered into pursuant to Rule 4-243. The court shall hold a hearing
on any timely motion to withdraw a plea of guilty or nolo contendere.
(2001 Md. Rules)
Rule 4-263. Discovery in circuit court.
Discovery and inspection in circuit court shall be as follows:
(a) Disclosure without request. Without the necessity of a request,
the State's Attorney shall furnish to the defendant:
(1) Any material or information tending to negate or mitigate the
guilt or punishment of the defendant as to the offense charged;
(2) Any relevant material or information regarding: (A) specific
searches and seizures, wire taps or eavesdropping, (B) the acquisition of
statements made by the defendant to a State agent that the State intends to use
69
at a hearing or trial, and (C) pretrial identification of the defendant by a
witness for the State.
(b) Disclosure upon request. Upon request of the defendant, the r
State's Attorney shall:
(1) Witnesses. Disclose to the defendant the name and address of
each person then laiown whom the State intends to call as a wimess at the
hearing or trial to prove its case in chief or to rebut alibi testimony;
(2) Statements of the defendant. As to all statements made by the
defendant to a State agent that the State intends to use at a hearing or trial,
fiimish to the defendant, but not file unless the court so orders: (A) a copy of
each written or recorded statement, and (B) the substance of each oral
statement and a copy of all reports of each oral statement;
(3) Statement of codefendants. As to all statements made by a
codefendant to a State agent which the State intends to use at a joint hearing
or trial, furnish to the defendant, but not file unless the court so orders: (A) a
copy of each written or recorded statement, and (B) the substance of each oral
statement and a copy of all reports of each oral statement;
(4) Reports or statements of experts. Produce and permit the
defendant to inspect and copy all written reports or statements made in
connection with the action by each expert consulted by the State, including the
results of any physical or mental examination, scientific test, experiment, or
comparison, and ftimish the defendant with the substance of any such oral
report and conclusion;
(5) Evidence for use at trial Produce and permit the defendant to
inspect, copy, and photograph any documents, computer-generated evidence
as defined in Rule 2-504.3(a), recordings, photographs, or other tangible things
that the State intends to use at the hearing or trial;
(6) Property of the defendant. Produce and permit the defendant to
inspect, copy, and photograph any item obtained from or belonging to the
defendant, whether or not the State intends to use the item at the hearing or
trial.
(c) Matters not subject to discovery by the defendant. This Rule
does not require the State to disclose:
(1) Any documents to the extent that they contain the opinions,
theories, conclusions, or other work product of the State's Attomey, or «
(2) The identity of a confidential informant, so long as the failure to
disclose the informant's identity does not infiinge a constitutional right of the
70
defendant and the State's Attorney does not intend to call the informant as a
witness, or
(3) Any other matter if the court finds that its disclosure would
entail a substantial risk of harm to any person outweighing the interest in
disclosure.
(d) Discovery by the State. Upon the request of the State, the
defendant shall:
(1) As to the Person of the Defendant. Appear in a lineup for
identification; speak for identification; be fingerprinted; pose for photographs
not involving reenactment of a scene; try on articles of clothing; permit the
taking of specimens of material under fingernails; permit the taking of samples
of blood, hair, and other material involving no unreasonable intrusion upon the
defendant's person; provide handwriting specimens; and submit to reasonable
physical or mental examination;
(2) Reports of experts. Produce and permit the State to inspect and
copy all written reports made in connection with the action by each expert
whom the defendant expects to call as a witness at the hearing or trial,
including the results of any physical or mental examination, scientific test,
experiment, or comparison, and fiimish the State with the substance of any
such oral report and conclusion;
(3) Alibi witnesses. Upon designation by the State of the time,
place, and date of the alleged occurrence, furnish the name and address of each
person other than the defendant whom the defendant intends to call as a
witness to show that the defendant was not present at the time, place, and date
designated by the State in its request.
(4) Computer-generated evidence. Produce and permit the State to
inspect and copy any computer-generated evidence as defined in Rule 2-
504.3(a) that the defendant intends to use at the hearing or trial.
(e) Time for discoveiy. The State's Attorney shall make disclosure
pursuant to section (a) of this Rule within 25 days after the earlier of the
appearance of counsel or the first appearance of the defendant before the court
pursuant to Rule 4-2 13. Any request by the defendant for discovery pursuant
to section (b) of this Rule, and any request by the State for discovery pursuant
to section (d) of this Rule shall be made within 1 5 days after the earlier of the
appearance of counsel or the first appearance of the defendant before the court
pursuant to Rule 4-213. The party served with the request shall furnish the
discovery within ten days after service.
71
(f) Motion to compel discovery. If discovery is not furnished as
requested, a motion to compel discovery may be filed within ten days after
receipt of inadequate discovery or after discovery should have been received, r
whichever is earlier. The motion shall specifically describe the requested
matters that have not been furnished. A response to the motion may be filed
within five days after service of the motion. The court need not consider any
motion to compel discovery unless the moving party has filed a certificate
describing good faith attempts to discuss with the opposing party the
resolution of the dispute and certifying that they are unable to reach agreement
on the disputed issues. The certificate shall include the date, time, and
circumstances of each discussion or attempted discussion.
(g) Obligations of State 's Attorney. The obligations of the State's
Attorney under this Rule extend to material and information in the possession
or control of the State's Attorney and staff members and any others who have
participated in the investigation or evaluation of the action and who either
regularly report, or with reference to the particular action have reported, to the
office of the State's Attorney.
(h) Continuing duty to disclose. A party who has responded to a
request or order for discovery and who obtains further material information
shall supplement the response promptly.
(i) Protective orders. On motion and for good cause shown, the
court may order that specified disclosures be restricted. If at any time during
the proceedings the court finds that a party has failed to comply with this Rule
or an order issued pursuant to this Rule, the court may order that party to
permit the discovery of the matters not previously disclosed, strike the
testimony to which the undisclosed matter relates, grant a reasonable
continuance, prohibit the party from introducing in evidence the matter not
disclosed, grant a mistrial, or enter any other order appropriate under the
circumstances.
(2001 Md. Rules)
Rule 4-323. Method of making objections.
(a) Objections to evidence. An objection to the admission of
evidence shall be made at the time the evidence is offered or as soon thereafter
as the grounds for objection become apparent. Otherwise, the objection is
waived. The grounds for the objection need not be stated unless the court, at
72
the request of a party or on its own initiative, so directs. The court shall rule
upon the objection promptly. When the relevancy of evidence depends upon
the fulfillment of a condition of fact, the court may admit the evidence subject
to the introduction of additional evidence sufficient to support a finding of the
jfulfillment of the condition. The objection is waived unless, at some time
before final argument in a jury trial or before the entry of judgment in a court
trial, the objecting party moves to strike the evidence on the ground that the
condition was not fulfilled.
(b) Continuing objections to evidence. At the request of a party or
on its own initiative, the court may grant a continuing objection to a line of
questions by an opposing party. For purposes of review by the trial court or
on appeal, the continuing objection is effective only as to questions clearly
within its scope.
(c) Objection to other rulings or orders. For purposes of review by
the trial court or on appeal of any other ruling or order, it is sufficient that a
party, at the time the ruling or order is made or sought, makes known to the
court the action that the party desires the court to take or the objection to the
action of the court. The grounds for the objection need not be stated unless
these rules expressly provide otherwise or the court so directs. If a party has
no opportunity to object to a ruling or order at the time it is made, the absence
of an objection at that time does not constitute a waiver of the objection.
(d) Formal exceptions unnecessary. A formal exception to a ruling
or order of the court is not necessary.
(2001 Md. Rules)
Rule 5-403. Exclusion of relevant evidence on grounds of prejudice,
confusion, or waste of time.
Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence.
(2001 Md. Rules)
73
Rule 5-801. Definitions.
The following definitions apply under this Chapter; r
(a) Statement. A "statement" is (1) an oral or written assertion or
(2) nonverbal conduct of a person, if it is intended by the person as an
assertion.
(b) Declarant A "declarant" is a person who makes a statement.
(c) Hearsay. "Hearsay" is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted.
(2001 Md. Rules)
Rule 5-803. Hearsay exceptions: Unavailability of declarant not required.
The following are not excluded by the hearsay rule, even though the
declarant is available as a wimess:
(a) Statement by party-opponent. A statement that is offered against
a paTt>' and is:
(1) The party's own statement, in either an individual or
representative capacity;
(2) A statement of which the party has manifested an adoption or
belief in its truth;
(3) A statement by a person authorized by the party to make a
statement concerning the subject;
(4) A statement by the part>''s agent or employee made during the
agency or employment relationship concerning a matter within the scope of the
agency or employment; or
(5) A statement by a coconspirator of the party during the course
and in furtherance of the conspiracy,
(b) Other exceptions. (1) Present sense impression. A statement
describing or explaining an event or condition made while the declarant was
perceiving the event or condition, or immediately thereafter.
(2) Excited utterance, A statement relating to a startling event or
condition made while the declarant was under the stress of excitement caused
by the event or condition.
74
(3) Then existing mental, emotional, or physical condition. A
statement of the declarant's then existing state of mind, emotion, sensation, or
physical condition (such as intent, plan, motive, design, mental feeling, pain,
and bodily health), offered to prove the declarant's then existing condition or
the declarant' s futureaction, but not including a statement of memory or belief
to prove the fact remembered or believed unless it relates to the execution,
revocation, identification, or terms of declarant's will.
(4) Statements for purposes of medical diagnosis or treatment.
Statements made for purposes of medical treatment or medical diagnosis in
contemplation of treatment and describing medical history, or past or present
symptoms , pain, or sensation, or the inception or general character of the cause
or external sources thereof insofar as reasonably pertinent to treatment or
diagnosis in contemplation of treatment.
(5) Recorded recollection. See Rule 5-802. 1(e) for recorded
recollection.
(6) Records of regularly conducted business activity. A
memorandum, report, record, or data compilation of acts, events, conditions,
opinions, or diagnoses if (A) it was made at or near the time of the act, event,
or condition, or the rendition of the diagnosis, (B) it was made by a person
with knowledge or from information transmitted by a person with knowledge,
(C) it was made and kept in the course of a regularly conducted business
activity, and (D) the regular practice of that business was to make and keep the
memorandum, report, record, or data compilation. A record of this kind may
be excluded if the source of information or the method or circumstances of the
preparation of the record indicate that the information in the record lacks
trustworthiness. In this paragraph, "business" includes business, institution,
association, profession, occupation, and calling of every kind, whether or not
conducted for profit.
(7) Absence of entry in records kept in accordance with subsection
(b)(6). Unless the circumstances indicate a lack of trustworthiness, evidence
that a diligent search disclosed that a matter is not included in the memoranda,
reports, records, or data compilations kept in accordance with subsection
(b)( 6), when offered to prove the nonoccurrence or nonexistence of the matter,
if the matter was of a kind about which a memorandum, report, record, or data
compilation was regularly made and preserved.
(8) Public records and reports. (A) Except as otherwise provided in
this paragraph, a memorandum, report, record, statement, or data compilation
made by a public agency setting forth
75
(i) the activities of the agency;
(ii) matters observed pursuant to a duty imposed by law, as to which
matters there was a duty to report; or
(iii) in civil actions and when offered against the State in criminal
actions, factual findings resulting from an investigation made pursuant to
authority granted by law.
(B) A record offered pursuant to paragraph (A) may be excluded if
the source of information or the method or circumstance of the preparation of
the record indicate that the record or the information in the record lacks
trustworthiness.
(C) A record of matters observed by a law enforcement person is not
admissible under this paragraph when offered against an accused in a criminal
action.
(D) This paragraph does not supersede specific statutory provisions
regarding the admissibility of particular pubhc records.
(9) Records of vital statistics. Except as otherwise provided by
statute, records or data compilations of births, fetal deaths, deaths, or
marriages, if the report thereof was made to a public office pursuant to
requirements of law.
(10) Absence of public record or entry. Unless the circumstances
indicate a lack of trustworthiness, evidence in the form of testimony or a
certification in accordance with Rule 5-902 that a diligent search has failed to
disclose a record, report, statement, or data compilation made by a public
agency, or an entry therein, when offered to prove the absence of such a record
or entry or the nonoccurrence or nonexistence of a matter about which a record
was regularly made and preser\'ed by the public agency.
(11) Records of religious organizations. Statements of births,
marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or
marriage, or other similar facts of personal or family history, contained in a
regularly kept record of a religious organization.
(12) Marriage, baptismal, and similar certificates. Statements of fact
contained in a certificate that the maker performed a marriage or other
ceremony or administered a sacrament, made by a member of the clergy,
public official, or other person authorized by the rules or practices of a
religious organization or by law to perform the act certified, and purporting to
have been issued at the time of the act or within a reasonable time thereafter.
(13) Family records. Statements offact concerning personal or family
history contained in family Bibles, genealogies, charts, engravings on rings,
76
inscriptions on family portraits, engravings on urns, crypts, or tombstones or
the like.
(14) Records of documents affecting an interest in property. The
^ record of a document purporting to establish or affect an interest in property,
as proof of the content of the original recorded document and its execution and
* delivery by each person by whom it purports to have been executed, if the
record is a record of a public office and a statute authorizes the recording of
documents of that kind in that office.
(15) Statements in documents affecting an interest in property. A
statement contained in a document purporting to establish or affect an interest
in property if the matter stated was relevant to the purpose of the document,
unless dealings with the property since the document was made have been
inconsistent with the truth of the statement or the purport of the document or
the circumstances otherwise indicate lack of trustworthiness.
(16) Statements in ancient documents. Statements in a document in
existence twenty years or more, the authenticity of which is established, unless
the circumstances indicate lack of trustworthiness.
( 1 7) Market reports and published compilations. Market quotations,
tabulations, lists, directories, and other published compilations, generally used
and reasonably relied upon by the public or by persons in particular
occupations.
(18) Learned treatises. To the extent called to the attention of an
expert witness upon cross-examination or relied upon by the expert witness in
direct examination, statements contained in a published treatise, periodical, or
pamphlet on a subject of history, medicine, or other science or art, established
as a reliable authority by the testimony or admission of the witness, by other
expert testimony, or by judicial notice. If admitted, the statements may be read
into evidence but may not be received as exhibits.
(19) Reputation concerning personal or family history. Reputation,
prior to the controversy before the court, among members of a person's family
by blood, adoption, or marriage, or among a person's associates, or in the
community, concerning a person's birth, adoption, marriage, divorce, death,
or other similar fact of persona! or family history.
(20) Reputation concerning boundaries or general history.
(A) Reputation in a community, prior to the controversy before the court, as
^ to boundaries of, interests in, or customs affecting lands in the community.
(B) Reputation as to events of general history important to the
„ community, state, or nation where the historical events occurred.
77
(21) Reputation as to character. Reputation of a person's character
among associates or in the community.
(22) Judgment of previous conviction. Evidence of a final judgment
entered after a trial or upon a plea of guilty (but not upon a plea of nolo
contendere) that adjudges a person guilty of a crime punishable by death or
imprisonment in excess of one year offered to prove any fact essential to
sustain the judgment. In criminal cases, the State may not offer evidence of
a judgment against persons other than the accused, except for purposes of
impeachment. The pendency of an appeal may be shown but does not
preclude admissibility.
(23) Judgment as to personal, family, or general history, or
boundaries. Judgments as proof of matters of personal, family, or general
history, or boundaries, essential to the judgment, if the mater would be
provable by evidence of reputation under subsections (19) or (20).
(24) Other exceptions. Under exceptional circumstances, the
following are not excluded by the hearsay rule, even though the declarant is
available as a wimess: A statement not specifically covered by any of the
foregoing exceptions but having equivalent circumstantial guarantees of
trustworthiness, if the court determines that (A) the statement is offered as
evidence of a material fact; (B) the statement is more probative on the point for
which it is offered than any other evidence which the proponent can procure
through reasonable efforts; and (C) the general purposes of these rules and the
interests of justice will best be served by admission of the statement into
evidence. A statement may not be admitted under this exception unless the
proponent of it makes known to the adverse part}', sufficiently in advance of
the trial or hearing to provide the adverse part>' with a fair opportunity to
prepare to meet it, the intention to offer the statement and the particulars of it,
including the name and address of the declarant.
(2001 iMd. Rules)
78
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